THE  LIBRARY 

OF 
THE  UNIVERSITY 

OF  CALIFORNIA 
LOS  ANGELES 


THE  MODERN   LEGAL  PHILOSOPHY 
SERIES 


Philosophy  in  the  Development  of  Law 


Edited  by  a  Committee  of  the 
ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


THE  SCIENCE  OF  LAW.  By  KARL  GAREIS  of  the  Uni- 
versity of  Munich.  Translated  by  Albert  Kocourek  of  North- 
western University. 

THE  WORLD'S  LEGAL  PHILOSOPHIES.  By  FRITZ  BER- 
OLZHEIMER  of  Berlin.  Translated  bv  Rachel  Szold  Jastrow  of 
Madison,  Wis. 

COMPARATIVE  LEGAL  PHILOSOPHY,  in  its  Application 
to  Legal  Institutions.  By  LUIGI  MIRAGLIA  of  the  University 
of  Naples.  Translated  by  John  Lisle  of  the  Philadelphia  Bar. 

GENERAL  THEORY  OF  LAW.  By  N.  M.  KORKUNOV  of 
the  University  of  Petrograd.  Translated  by  W.  G.  Hastings 
of  the  University  of  Nebraska. 

LAW  AS  A  MEANS  TO  AN  END.  By  RUDOLF  VON  IHER- 
ING  of  the  University  of  Berlin.  Translated  by  Isaac  Husih 
of  the  University  of  Pennsylvania. 

THE  POSITIVE  PHILOSOPHY  OF  LAW.     By  I.  VANNI  of 

the  University  of  Bologna.     Translated   by  John  Lisle  and 
Layton  B.  Register  of  the  Philadelphia  Bar. 

MODERN  FRENCH  LEGAL  PHILOSOPHY.  By  A. 
FOUILLEE,  J.  CHARMONT,  L.  DUGUIT  and  R.  DEMOGUE  of 
the  Universities  of  Paris,  Montpellier,  Bordeaux  and  Lille. 
Translated  by  Joseph  P.  Chamberlain  of  the  New  York  Bar, 
and  Ethel  F.  Scott  of  Urbana,  111. 

THE  THEORY  OF  JUSTICE.  By  RUDOLF  STAMMLER  of 
the  University  of  Halle.  Translated  by  Isaac  Husik  of  the 
University  of  Pennsylvania. 

THE  SCIENCE  OF  LEGAL  METHOD.  By  Various 
Authors.  Translated  by  Ernest  Bruncken  of  Washington, 
D.  C. 

THE  FORMAL  BASIS  OF  LAW.  By  G.  DEL  VECCHIO  of 
the  University  of  Rome.  Translated  by  John  Lisle  of  the 
Philadelphia  Bar. 

THE   SCIENTIFIC     BASIS    OF    LEGAL    JUSTICE.       By 

Various  Authors. 

THE  PHILOSOPHY  OF  LAW.  By  JOSEF  KOHLER  of  the 
University  of  Berlin.  Translated  by  Adalbert  Albrecht  of 
South  Easton,  Mass. 

PHILOSOPHY  IN  THE  DEVELOPMENT  OF  LAW.  By 
P.  DE  TOURTOULON  of  the  University  of  Lausanne.  Trans- 
lated by  Martha  McC.  Read  of  Washington,  D.  C. 


Modern  Legal  Philosophy  Series:   Vol.  XIII 

PHILOSOPHY  IN  THE 
DEVELOPMENT  OF  LAW 


BY 

PIERRE  DE  TOURTOULON 

Professor  of  Legal  History  in  the 
University  of  Lausanne 

TRANSLATED   BY 

MARTHA  McC.  READ 

of  Washington,  D.  C. 

WITH  AN  EDITORIAL   PREFACE   BY 

MORRIS  R.  COHEN 
Professor  of  Philosophy  in  the  College  of  the  City  of  New  York 


AND  AN  INTRODUCTION   BY 

ANDREW  A.  BRUCE 

Former  Chief  Justice  of  the  Supreme  Court  of  North  Dakota, 
Professor  of  Law  in  the  University  of  Minnesota 


THE   MACMILLAN   COMPANY 
1922 

AU  rights  reserve^ 


PRINTED  IN  THE  UNITED  STATES  OF  AMERICA 


COPYRIGHT.  1922, 
BY  THE  MACMILLAN  COMPANY 


Set  up  and  printed.         Published  March,   1922. 


Press  of  J.  J.  Little  &  Ives  Co. 
New  York 


College 
Library 

K 

5o 


EDITORIAL  COMMITTEE 

OF   THE 

ASSOCIATION  OF  AMERICAN   LAW  SCHOOLS 

MORRIS  R.  COHEN,  Professor  of  Philosophy,  College  of  the  City  of 

New  York. 

JOSEPH  H.  DRAKE,  Professor  of  Law,  University  of  Michigan. 
ALBERT  KOCOURFK,  Professor  of  Law,  Northwestern  University. 
ERNEST  G.  LORENZEN,  Professor  of  Law,  Yale  University. 
FLOYD  R.  MECHEM,  Professor  of  Law,  University  of  Chicago. 
ROSCOE  POUND,  Professor  of  Law,  Harvard  University. 
ARTHUR  W.  SPENCER,  Brookline,  Mass. 
JOHN  H.  WIGMORE,   Chairman,  Professor  of  Law,  Northwestern 

University. 


LIST  OP  TRANSLATORS 

ADALBERT  ALBRECHT,  formerly  of  South  Easton,  Mass. 

ERNEST  BRUNCKEN,  formerly  of  Washington,  D.  C. 

JOSEPH  P.  CHAMBERLAIN,  Columbia  University. 

WILLIAM  G.  HASTINGS,  Professor  of  Law,  University  of  Nebraska. 

ISAAC  HUSIK,  Lecturer  on  Philosophy,  University  of  Pennsylvania. 

RACHEL  SZOLD  JASTROW,  University  of  Wisconsin. 

ALBERT  KOCOUREK,  of  the  Editorial  Committee. 

JOHN  LISLE,  late  of  Philadelphia,  Pa. 

MARTHA  McC.  READ,  Washington,  D.  C. 

LAYTON  B.  REGISTER,  University  of  Pennsylvania. 

ETHEL  FORBES  SCOTT,  University  of  Illinois. 


1720579 


GENERAL  INTRODUCTION  TO 
THE  SERIES 

BY  THE  EDITORIAL  COMMITTEE 


"Until  either  philosophers  become  kings,"  said  Soc- 
rates, "or  kings  philosophers,  States  will  never  succeed  in 
remedying  their  shortcomings."  And  if  he  was  loath  to 
give  forth  this  view,  because,  as  he  admitted,  it  might 
"sink  him  beneath  the  waters  of  laughter  and  ridicule," 
so  to-day  among  us  it  would  doubtless  resound  in  folly  if 
we  sought  to  apply  it  again  in  our  own  field  of  State  life, 
and  to  assert  that  philosophers  must  become  lawyers  or 
lawyers  philosophers,  if  our  law  is  ever  to  be  advanced 
into  its  perfect  working. 

And  yet  there  is  hope,  as  there  is  need,  among  us  to- 
day, of  some  such  transformation.  Of  course,  history 
shows  that  there  always  have  been  cycles  of  legal  prog- 
ress, and  that  they  have  often  been  heralded  and  guided 
by  philosophies.  But  particularly  there  is  hope  that  our 
own  people  may  be  the  generation  now  about  to  exem- 
plify this. 

There  are  several  reasons  for  thinking  our  people  apt 
thereto.  But,  without  delaying  over  the  grounds  for 
such  speculations,  let  us  recall  that  as  shrewd  and  good- 
natured  an  observer  as  DeTocqueville  saw  this  in  us. 
He  admits  that  "in  most  of  the  operations  of  the  mind, 
each  American  appeals  to  the  individual  exercise  of  his 
own  understanding  alone;  therefore  in  no  country  in  the 
civilized  world  is  less  attention  paid  to  philosophy  than 
in  the  United  States."  But,  he  adds,  "the  Americans 
are  much  more  addicted  to  the  use  of  general  ideas  than 

vii 


viii  GENERAL  INTRODUCTION 

the  English,  and  entertain  a  much  greater  relish  for 
them."  And  since  philosophy  is,  after  all,  only  the 
science  of  general  ideas  —  analyzing,  restating,  and  re- 
constructing concrete  experience — we  may  well  trust  that 
(if  ever  we  do  go  at  it  with  a  will)  we  shall  discover  in 
ourselves  a  taste  and  high  capacity  for  it,  and  shall 
direct  our  powers  as  fruitfully  upon  law  as  we  have  done 
upon  other  fields. 

Hitherto,  to  be  sure,  our  own  outlook  on  juristic  learn- 
ing has  been  insular.  The  value  of  the  study  of  compara- 
tive law  has  only  in  recent  years  come  to  be  recognized 
by  us.  Our  juristic  methods  are  still  primitive,  in  that 
we  seek  to  know  only  by  our  own  experience,  and  pay 
no  heed  to  the  experience  of  others.  Our  historic  bond 
with  English  law  alone,  and  our  consequent  lack  of 
recognition  of  the  universal  character  of  law  as  a  ge- 
neric institution,  have  prevented  any  wide  contact  with 
foreign  literatures.  While  heedless  of  external  help  in 
the  practical  matter  of  legislation,  we  have  been  ob- 
livious to  the  abstract  nature  of  law.  Philosophy  of 
law  has  been  to  us  almost  a  meaningless  and  alien 
phrase.  "All  philosophers  are  reducible  in  the  end  to 
two  classes  only:  utilitarians  and  f utilitarians,"  is  the 
cynical  epigram  of  a  great  wit  of  modern  fiction.1  And 
no  doubt  the  philistines  of  our  profession  would  echo 
this  sarcasm. 

And  yet  no  country  and  no  age  have  ever  been  free 
(whether  conscious  of  the  fact  or  not)  from  some  drift  of 
philosophic  thought.  "In  each  epoch  of  time,"  says  M. 
Leroy,  in  a  brilliant  book  of  recent  years,  "there  is  cur- 
rent a  certain  type  of  philosophic  doctrine  —  a  philoso- 
phy deep-seated  in  each  one  of  us,  and  observable  clearly 
and  consciously  in  the  utterances  of  the  day  —  alike  in 
novels,  newspapers,  and  speeches,  and  equally  in  town 

1  M.  Dumaresq,  in  Mr.  Paterson's  "The  Old  Dance  Master." 


GENERAL  INTRODUCTION  ix 

and  country,  workshop  and  counting-house."  Without 
some  fundamental  basis  of  action,  or  theory  of  ends,  all 
legislation  and  judicial  interpretation  are  reduced  to  an 
anarchy  of  uncertainty.  It  is  like  mathematics  without 
fundamental  definitions  and  axioms.  Amidst  such  con- 
ditions, no  legal  demonstration  can  be  fixed,  even  for  a 
moment.  Social  institutions,  instead  of  being  governed 
by  the  guidance  of  an  intelligent  free  will,  are  thrown 
back  to  the  blind  determinism  of  the  forces  manifested 
in  the  natural  sciences.  Even  the  phenomenon  of  experi- 
mental legislation,  which  is  peculiar  to  Anglo-American 
countries,  cannot  successfully  ignore  the  necessity  of  hav- 
ing social  ends. 

The  time  is  ripe  for  action  in  this  field.  To  quote  the 
statement  of  reasons  given  in  the  memorial  presented  at 
the  annual  meeting  of  the  Association  of  American  Law 
Schools  in  August,  1910:  — 

The  need  of  the  series  now  proposed  is  so  obvious  as  hardly  to 
need  advocacy.  We  are  on  the  threshold  of  a  long  period  of  con- 
structive readjustment  and  restatement  of  our  law  in  almost  every 
department.  We  come  to  the  task,  as  a  profession,  almost  wholly 
untrained  in  the  technic  of  legal  analysis  and  legal  science  in  gen- 
eral. Neither  we,  nor  any  community,  could  expect  anything  but 
crude  results  without  thorough  preparation.  Many  teachers,  and 
scores  of  students  and  practitioners,  must  first  have  become  thor- 
oughly familiar  with  the  world's  methods  of  juristic  thought.  As  a 
first  preparation  for  the  coming  years  of  that  kind  of  activity,  it  is 
the  part  of  wisdom  first  to  familiarize  ourselves  with  what  has  been 
done  by  the  great  modern  thinkers  abroad  —  to  catch  up  with  the 
general  state  of  learning  on  the  subject.  After  a  season  of  this,  we 
shall  breed  a  family  of  well-equipped  and  original  thinkers  of  our 
own.  Our  own  law  must,  of  course,  be  worked  out  ultimately  by 
our  own  thinkers;  but  they  must  first  be  equipped  with  the  state  of 
learning  in  the  world  to  date. 

How  far  from  "unpractical"  this  field  of  thought  and  research 
really  is  has  been  illustrated  very  recently  in  the  Federal  Supreme 
Court,  where  the  opposing  opinions  in  a  great  case  (Kuhn  v.  Fair- 
mont Coal  Co.)  turned  upon  the  respective  conceptions  of  "Jaw"  in 


x  GENERAL  INTRODUCTION 

the  abstract,  and  where  Professor  Gray's  recent  work  on  "The 
Nature  and  Sources  of  the  Law"  was  quoted,  and  supplied  direct 
material  for  judicial  decision. 

Acting  upon  this  memorial,  the  following  resolution 
was  passed  at  that  meeting :  — 

That  a  committee  of  five  be  appointed  by  the  president,  to  ar- 
range for  the  translation  and  publication  of  a  series  of  continental 
master-works  on  jurisprudence  and  philosophy  of  law. 

The  committee  spent  a  year  in  collecting  the  material. 
Advice  was  sought  from  a  score  of  masters  in  the  leading 
universities  of  France,  Germany,  Italy,  Spain,  and  else- 
where. The  present  Series  is  the  result  of  these  labors. 

In  the  selection  of  this  Series,  the  committee's  purpose 
has  been,  not  so  much  to  cover  the  whole  field  of  mod- 
ern philosophy  of  law,  as  to  exhibit  faithfully  and  fairly 
all  the  modern  viewpoints  of  any  present  importance. 
The  older  foundation-works  of  two  generations  ago  are, 
with  some  exceptions,  already  accessible  in  English  trans- 
lation. But  they  have  been  long  supplanted  by  the 
products  of  newer  schools  of  thought  which  are  offered 
in  this  Series  in  their  latest  and  most  representative 
form.  It  is  believed  that  the  complete  Series  represents 
in  compact  form  a  collection  of  materials  whose  equal 
cannot  be  found  at  this  time  in  any  single  foreign 
literature. 

The  committee  has  not  sought  to  offer  the  final  solu- 
tion of  any  philosophical  or  juristic  problems;  nor  to 
follow  any  preference  for  any  particular  theory  or  school 
of  thought.  Its  chief  purpose  has  been  to  present  to 
Anglo-American  readers  the  views  of  the  best  modern 
representative  writers  in  jurisprudence  and  philosophy  of 
law.  The  Series  shows  a  wide  geographical  representa- 
tion; but  the  selection  has  not  been  centered  on  the 
notion  of  giving  equal  recognition  to  all  countries. 
Primarily,  the  design  has  been  to  represent  the  various 


GENERAL  INTRODUCTION  xi 

schools  of  thought;  and,  consistently  with  this,  then  to 
represent  the  different  chief  countries.  This  aim,  how- 
ever, has  involved  little  difficulty;  for  Continental 
thought  has  lines  of  cleavage  which  make  it  easy  to  rep- 
resent the  leading  schools  and  the  leading  nations  at  the 
same  time. 

To  offer  here  an  historical  introduction,  surveying  the 
various  schools  of  thought  and  the  progress  from  past  to 
present,  was  regarded  by  the  committee  as  unnecessary. 
The  volumes  of  Dr.  Berolzheimer  and  Professor  Miraglia 
amply  serve  this  purpose;  and  the  introductory  chapter 
of  the  latter  volume  provides  a  short  summary  of  the 
history  of  general  philosophy,  rapidly  placing  the  reader 
in  touch  with  the  various  schools  and  their  standpoints. 
The  Series  has  been  so  arranged  (in  the  numbered  list 
fronting  the  title  page)  as  to  indicate  the  order  of  pe- 
rusal most  suitable  for  those  who  desire  to  master  the 
field  progressively  and  fruitfully. 

The  committee  takes  great  pleasure  in  acknowledging 
the  important  part  rendered  in  the  consummation  of  this 
project,  by  the  publisher,  the  authors,  and  the  trans- 
lators. Without  them  this  Series  manifestly  would  have 
been  impossible. 

To  the  publisher  we  are  grateful  for  the  hearty  spon- 
sorship of  a  kind  of  literature  which  is  so  important  to 
the  advancement  of  American  legal  science.  And  here 
the  Committee  desires  also  to  express  its  indebtedness  to 
Elbert  H.  Gary,  Esq.,  of  New  York  City,  for  his  ample 
provision  of  materials  for  legal  science  in  the  Gary  Li- 
brary of  Continental  Law  (in  Northwestern  University). 
In  the  researches  of  preparation  for  this  Series,  those 
materials  were  found  indispensable. 

The  authors  (or  their  representatives)  have  cordially 
granted  the  right  of  English  translation,  and  have  shown 
a  friendly  interest  in  promoting  our  airos.  The  commit- 
tee would  be  assuming  too  much  to  thank  these  learned 


xii  GENERAL  INTRODUCTION 

writers  on  its  own  behalf,  since  the  debt  is  one  that  we 
all  owe. 

The  severe  labor  of  this  undertaking  fell  upon  the 
translators.  It  required  not  only  a  none  too  common 
linguistic  skill,  but  also  a  wide  range  of  varied  learning 
in  fields  little  travelled.  Whatever  success  may  attend 
and  whatever  good  may  follow  will  in  a  peculiar  way 
be  attributable  to  the  scholarly  labors  of  the  several 
translators. 

The  committee  finds  special  satisfaction  in  having  been 
able  to  assemble  in  a  common  purpose  such  an  array  of 
talent  and  learning;  and  it  will  feel  that  its  own  small 
contribution  to  this  unified  effort  has  been  amply  recom- 
pensed if  this  Series  measurably  helps  to  improve 
and  to  refine  our  institutions  for  the  administration  of 
justice. 


CONTENTS 


Page 

1.  General  Introduction  to  the  Series vii 

2.  Editorial  Preface  to  this  Volume,  by  Morris  R.  Cohen ....  xxi 

3.  Introduction  to  this  Volume,  by  Andrew  A.  Bruce xli 

4.  Author's  Original  Preface xlvii 

5.  Author's  Preface  to  the  American  Edition .  .  li 


BOOK  I— TELEOLOGY  IN  THE  HISTORY  OF  LAW 

INTRODUCTORY  CHAPTER — OBJECT  AND  SCOPE  OF  THIS  WORK  Iv 

CHAPTER  I — METAPHYSICAL  TELEOLOGY 

§  1.  Aims  and  Forces 7 

§  2.   Final  Cause  in  Biology 8 

§  3.   Teleology  in  Psychology 10 

§  4.   Teleology  and  Morality 13 

§  5.    Teleology  in  Law  and  Politics 17 

§  6.   Teleology  in  History 19 

§  7.    Teleology  and  Legal  History 23 

§  8.  Conclusion 25 

CHAPTER  II — HUMAN  TELEOLOGY 

§  1.   Psychological  Determinism  and  the  Law 29 

§  2.   The  Will  and  Action  in  Psychological  Life 31 

§  3.   The  Human  Will  as  Juridical  Cause 34 

§  4.   The  Will  as  Juridical  Phenomenon  or  Epiphenomenon. . .  35 

§  5.   Heterogeneity  of  Ends 37 

$  6.  Conclusion 41 

xiii 


xiv  CONTENTS 

BOOK  II— CAUSALITY  IN  THE  HISTORY  OF  LAW 
CHAPTER  I — THE  IDEA  OF  CAUSE 

Page 

§  1 .   Introduction 45 

§  2.   The  Objective  and  the  Subjective  Cause 46 

§  3.   The  Problem  of  Objective  Cause: 

I.   Degree  of  Identity  between  Cause  and  Effect.  ...       48 

II.    Difficulty  of  Forming  Causal  Series 51 

III.   Individual  Character  of  the  Objective  Cause 52 

§  4.   The  Subjective  Cause: 

I.   Utilization  by  Man  of  Causal  Principles 54 

II.    Man's  Treatment  of  Causes 56 

§  5.   Causality  and  Classification: 

I.   Common  Mistakes  in  the  Application  of  Classifi- 
cation to  Causal  Interpretation 60 

II.   Method  Advisable  for  the  Historian 62 

S  6.  Causality  and  Chronology 64 

§  7.   History  and  Causality: 

I.    Individualization  and  Generalization  of  Causes. . .       65 
II.   Objective  and  Subjective  Character  of  Two  Opera- 
tions         69 

§  8.   Cause  and  Origin  in  the  History  of  Legal  Institutions: 

I.   Investigation  of  Individual  Causes  of  Juridical 

Facts 71 

II.   Distinction    between    Objective    and    Subjective 

Cause 73 

CHAPTER  II — BIOLOGY  AND  THE  LAW 

§  1.  Juridical  Facts  not  by  Nature  Biological  Phenomena: 

I.   Monistic  Conception  of  Universe  a  Source  of  Con- 
fusion         76 

II.   Biological   Phenomena   as    Material,    Social   and 

Psychological  Factors  in  Human  Life 79 

CHAPTER  III — RACE  AND  THE  LAW 

§  1.  Races  and  Institutions: 

I.   Theory  that  Race  is  Foreign  to  Institutions 85 

II.   Theory  that  Races  are  Representative  of  Institu- 
tions         88 

III.  Theory  that  Race  is  a  Factor  in  Institutions 89 

IV.  Race  in  Particular  Provisions  and  in  General  Dis- 

position of   the   Law.     Types  of   Institutions 
Suitable  to  Pure  and  to  Mixed  Races 93 


CONTENTS  xv 

CHAPTER  IV — SELECTION  IN  AND  THROUGH  THE  LAW 

Page 

§  1.  Statement  of  Problems  of  Selection  as  Related  to  Law. .       96 
§  2.   Elimination  and  Selection: 

I.   Moral  Elimination  a  Juridical  Fact  and  a  Biolog- 
ical Phenomenon 98 

II.   Natural   Selection   not   a    Demonstrable   Truth, 

hence  not  a  Juridical  Factor 99 

§  3.   Natural  Selection  and  the  Theory  of  the  Elite 104 

§  4.   Selection  Through  the  Law: 

I.   Selective  Effect  of  the  Idea  of  Justice  and  of  Con- 
ceptions of  Public  Order  and  Legal  Authority.  .      114 

II.   Solidarity  and  Selection 116 

III.   Selection  and  Criminal  Law 120 

§  5.   Selection  in  Legislation: 

I.   Selective  Institutions  and  Projects;  Their  Futil- 
ity and  Inefficiency 128 

II.   Concerning  the  Right  and  Justice  of  Selection ....     130 

CHAPTER  V — SOCIAL  PSYCHOLOGY  AND  THE  LAW 

§  1.   Psychology,  Social  Psychology  and  Legal  History  Dis- 
tinguished       134 

§  2.   Psychological  Relations  between  the  Individual  and  So- 
ciety: 
I.   Individual  Sentiments   with   the  Collectivity  as 

their  Object 137 

II.    Individual  Psychology  Created  by  Social  Life ....     139 

III.  Mixed  Psychological  Phenomena 147 

IV.  Purely  Collective  Psychological  Phenomena 150 

§  3.   Social  Beings  and  Collective  Thought:    Varieties  of  Col- 
lective Beings  in  Social  Organisms 160 

§  4.   The  Past  and  the  Future  of  Individual  and  Collective 

Thought: 

I.    Proportion  of  Individual  and  Collective  Thought     164 
II.    Theories  of  the  Regular  and  Steady  Development 
of  Individual  Thought  with  Advancing  Civili- 
zation       165 

III.  Co-existence  of  Individual  and  CollectiveThought ; 
of  Individualizing  and  Socializing  Forces,  in  Fu- 
ture as  in  Past .  .  176 


xvi  CONTENTS 

§  5.   The  Law  and  Collective  Psychology:  Page 

I.   Roots  of  Law  in  Religion  and  Magic 179 

II.    Double  Tendency  of  Juridical  Science 190 

III.   Substitution  of  Collective  Thought  for  General 

Conscience 192 

CHAPTER  VI — PSYCHOLOGICAL  ELEMENTS  OF  THE  LAW 

§  1.   Psychological  Characteristics  of  Juridical  Facts 196 

§  2.   The  Logically  and  the  Historically  Simple  in  Psychology  199 

§  3.   Heterogeneity  of  Psychological  Causes 202 

§  4.   Psychological  Embryology 205 

§  5.   Characteristics  of  Juridical  Psychology 207 

CHAPTER  VII — LAW  AND  THE  EMOTIONAL  LIFE 
§  1.   Special  Individual  Sentiments  in  the  Law: 

I.   R61e  in  Creation  of  Law 213 

II.   R61e  in  Interpretation  of  Laws  of  the  Present; 

Modern  Socialism 215 

III.   R61e  in  Interpretation  of  Laws  of  the  Past 218 

§  2.   General  and  Social  Sentiments  in  the  Law: 

I.    Emotions  of  Social  Sympathy 222 

II.    Emotions  of  Social  Sanction 227 

III.  Emotions  of  Social  Distraction 229 

IV.  Emotions  of  Social  Contact 233 

V.   Purely  Moral  and  Juridical  Emotions 239 

VI.    Political  and  Utilitarian  Emotions 246 

§  3.   Influence  of  Sentiment  upon  the  Law: 

I.  Conflict  between  the  Practical  and  the  Sentimental  252 

II.  Legislative  and  Juridical  Labor  Sentimental  in 

Form  as  well  as  in  Substance 257 

CHAPTER  VIII — LAW  AND  THE  INTELLECTUAL  LIFE 

§  1.     Introduction 262 

§  2.     Logic  and  Sentiment 263 

§  3.     Different  Forms  of  the  Intellectual 265 

CHAPTER  IX — THE  DISEASES  OF  LEGAL  THINKING 

§  1.     General  Characteristics  of  Diseases  of  Thought 268 

§  2.     Principal  Types  of  Diseases  of  Thought: 

I.     Credulity 271 

II.  Language  Myths 276 

III.  Historical  Myths 285 

IV.  Fashion..  288 


CONTENTS  xvii 

Page 

§  3.     Diseases  of  Thought  and  Legal  Development : 

I.     The  Myth  as  a  Factor  in  Energy 291 

II.     Formation  of  the  Mythical  Construction 292 

III.     Proper  and  Improper  Conceptions  of  the  Mythi- 
cal Construction 293 

§  4.     The  Myth  and  Juridical  Fictions: 

I.     The  Rational  Element  in  the  Fiction 295 

III.     Mythical  Terms  and  Expressions  in  Law 298 

CHAPTER  X — THE  RATIONAL  ELEMENT  IN  LAW:     A,  ANALYSIS; 

B,  DEFINITION 
A:     ANALYSIS 

§  1.    The  Simple  Rational 302 

§  2.     Analysis: 

I.     Legal  Procedure 304 

II.     Concrete  and  Abstract  Analysis 307 

III.     Logical  Value  of  Legal  Analysis 309 

§  3.     The  Brocard: 

I.     Form  of  the  Brocard 310 

II.     Classification  of  Brocards ......    314 

III.  Historical  Importance  of  the  Brocard 320 

IV.  Role  and  Logical  Value  of  the  Brocard . .  325 

B:     DEFINITION 
§  4.     The  Definition: 

I.     Kinds 328 

II.     History 334 

III.     Logical  Value ;....     344 

CHAPTER  XI — THE  RATIONAL  ELEMENT  IN    LAW    (CONTINUED): 
C,  ANALOGY;  D,  CONSTRUCTION;  E,  FICTION 

C:    ANALOGY 
§  1.     Reasoning  by  Analogy : 

I.     Analogy  in  the  Different  Sciences 351 

II.     Comparison  and  Analogy 353 

III.  Analogy  in  Favored  Law  and  Analogy  in  Com- 

mon Law 358 

IV.  Its  Logical  Value  in  Juridical  Science 364 

D:     CONSTRUCTION 
§  2.     Juristic  Construction: 

I.     Nature 367 

II.     Principal  Forms 370 

III.  Logical  Value  of  the  Theoretic  Construction ....  374 

IV.  R61e  in  Relation  to  History 380 


xviii  CONTENTS 

E:     FICTION 

§  3.     The  Juristic  Fiction:  Page 

I.     Dogmatic  Function 385 

II.     Historical  Function 386 

III.     Logical  Value 390 

§  4.     The  Procedural  Fiction: 

I.     In  Ordinary  Proof 395 

II.     In  Presumptions 397 

§  5.     Conclusion:    R61e  and  Value  of  the  Rational  Element 

in  Law 400 

CHAPTER  XII — THE  HIGHER  ORDERS  OF  JURIDICAL  THOUGHT 

§  1.     Introduction 402 

§  2.     Principal  Sources  of  Confusion  Among  Legal  Theorists: 

I.     Law  and  Juridical  Institutions   404 

II.     Positive  and  Desirable  Law;  Right  and  Justice  406 
III.     General  Law;  Juridical  Categories;  Juridical  or 

Philosophical  Constructions 408 

CHAPTER  XIII — SCIENTIFIC  OR  "PURE"  LAW 

§  1.     Introduction 416 

§  2.     Experimental  Truths  in  Juridical  Life: 

I.     Ambiguity  of  Terminology  in  the  Experimental 

Sciences 418 

II.     Mechanism  of  the  Experimental  Method 420 

III.  Observation;  Its  Nature  and  its  Progress 424 

IV.  Juridical  Observation  and  Historical  Observation  427 
V.     Experience  and  Juridical  Truths 431 

VI.     The  Experimental  Method  and  Legal  Develop- 
ment .  .    435 

§  3.     Juridical  Categories: 

I.     Categorical  Ideas  in  Juridical  Literature 445 

II.     Juridical  Categories  and  the  Problem  of  Knowl- 
edge    455 

III.  The  First  Elements  of  Law 458 

IV.  Delimitation  of  Juridical  Categories 461 

V.     R61e  of  the  Categorical  in  Juridical  Life 464 

§  4.     Pure  Legal  Science,  or  the  Science  of  Possible  Solutions: 

I.     Logical  Value 468 

II.     Relation  to  Intellectuality  of  Present  and  Past.  469 

CHAPTER  XIV— -LAW  AND  METAPHYSICAL  THOUGHT 
§  1.     Metaphysical  Thought 474 


CONTENTS  xix 

§  2.     Transcendent  Justice:  Page 

I.     Political  Solution 479 

II.     Subjective  Justice 479 

III.  Collective  Conception  of  Justice 479 

IV.  Mutable  Justice  and  Immanent  Justice 481 

V.     Immutable  and  Transcendent  Justice 482 

§  3.     Metaphysical  Law  and  Morality: 

I.     Metaphysical  Law  Distinct  from  Morality 485 

II.     Character  of  Juridical  Duty 488 

§  4.     Metaphysical  Law  and  Positive  Law 489 

§  5.     Ideas  Derived  from  the  Idea  of  Justice: 

I.     Methods  of  Derivation;  Efforts  of  Practitioners; 

Confusion  of  Theorists 492 

II.     Analysis  of  "Suum  Cuique" 494 

III.  Governmental  Justice 501 

IV.  International  J  ustice 502 

§  6.    The  Old  Natural  Law: 

I.     Reason 505 

II.     Nature 507 

§  7.     History  and  Metaphysics  of  Law: 

I.     Independence  of  the  Practical  and  the  Theoretical 

Idea  of  Justice 510 

II.     Absence  of  Continuity;  Confusion  in  Terminology  514 

III.  Debt  of  Legal  Philosophy  to  Mythology,  Classic 

Authors,  and  Islamitiq  Law 514 

IV.  Sketch   of   General   Principles   from   Tenth    to 

Nineteenth  Century 515 

CHAPTER  XV — LAW  AND  LIFE 

§  1.     Introduction 521 

§  2.     Institutions: 

I.     The  Simple  and  the  Juridical  Institution 522 

II.     Zone  of  Variability  of  Institutions 525 

III.  Value  of  Institutions 527 

IV.  Affection  for  and  Aversion  against  Institutions.  .  529 
V.     Prestige  of  Institutions,  and  their  Development 

through  Analogy 530 

§  3.     The  Economic  Factor: 

I.     Economic  Psychology 533 

II.     Economic  Logic 536 

III.  Intellectual  Adaptation  of  Man  to  the  Nature 

of  Things 53S 

IV.  Influence    of    Material    Things    upon    Human 

Psychology 542 


xx  CONTENTS 

§  4.     Theory  and  Practice:  page 

I.     Theoretical  and  Practical  Functions 548 

II.     Theoretical  and  Practical  Methods 549 

III.     Theory  and  Practice  in  the  History  of  Law 556 

BOOK  III 
CHAPTER  I — DETERMINISM  AND  THE  IDEA  OF  LAW 

§  1.     Determinism  and  the  Idea  of  Law: 

I.     Determinism  and  Determination 568 

II.    The  Idea  of  "Law" 572 

§  2.     Determinism  and  the  Idea  of  Law  in  the  Formation  of 
the  Law: 

I.     Renewal  of  the  Human  Personnel 579 

II.     Multiplicity  of  Creative  Factors  in  Law 582 

III.  Rational  Laws  of  Realization 583 

IV.  Metaphorical  Laws  or  Formulas 585 

CHAPTER  II — EVOLUTION.    TRANSFORMATION.    PROGRESS 

§  1.     Introduction 587 

§  2.     Vital  Evolution: 

I.     Nature  of  Vital  Evolution 588 

II.     Evolution  of  Thought  and  Human  Institutions. .     589 
§  3.     Transformistic  Evolution: 

I.     Domain  of  Transformistic  Evolution 597 

II.     Survivance  and  Archaism 600 

§  4.     Progressional  Evolution: 

I.     Conceptions  of  Progress 603 

II.     General  Progress  or  Special  Progress 611 

III.     Chances  of  Realization  of  the  Various  Forms  of 

Progress  and  the  Destinies  of  Humanity 612 

§  5.     Metaphysical  Constructions  Concerning  Evolution  and 
History: 

I.     Search  for  the  Hidden  Plan  of  the  Universe 615 

II.     Theistic  and  Pantheistic  Systems 616 

CHAPTER  III — CHANCE 

§  1.     Introduction 620 

§  2.     Notion  of  Chance: 

I.  Subjectivity  or  Objectivity  of  Chance 621 

II.  Complete  and  Incomplete  Chance 623 

III.  Frequency  and  Succession  Before  the  Laws  of 

Chance 624 

IV.  Chance  of  Crossing 628 

§  3.     Chance  and  Statistics 629 

§  4.     Possibilities  in  History 631 

§  5.     Chance  and  Legal  History 632 


EDITORIAL  PREFACE  TO  THIS  VOLUME 


BY  MORRIS  R.  COHEN  l 

This  volume,  designed  to  figure  as  the  closing  one  of  the 
Modern  Legal  Philosophy  Series,  is  a  translation  of  Pro- 
fessor Tourtoulon's  "Les  principes  philosophiques  de 
1'histoire  du  Droit."  A  first  instalment  of  that  work  was 
published  in  French  (Payot  &  Cie,  Lausanne,  Paris)  in 
1908  (Book  I,  and  Book  II,  Chaps.  I-VII);  the  com- 
pleted publication  did  not  take  place  till  1919. 

PIERRE  DE  TOURTOULON  was  born  at  Montpellier, 
France,  August  11,  1867.  His  father,  Baron  Charles  de 
Tourtoulon,  was  deeply  interested  in  philology,  history, 
and  international  politics;  he  founded  and  edited  the 
"Revue  des  langues  romanes"  and  the  "Revue  du 
monde  latin."  The  young  man  began  his  university 
studies  at  Montpellier.  Among  his  instructors  in  the 
Faculty  of  Law  of  that  ancient  and  famous  institution  were 
Girard,  the  eminent  scholar  of  Roman  Law;  Meynial, 
distinguished  historian  of  law;  and  Charmont,  a  jurist  of 
first  rank  (whose  work  has  already  been  presented  in  trans- 
lation in  Volume  VII  of  the  present  Series).  The  first 
two  of  these  scholars  are  now  attached  to  the  faculty  at 
Paris;  the  last  is  still  adding  lustre  to  the  faculty  at  Mont- 
pellier. 

Tourtoulon  chose  for  the  subject  of  his  doctorate  thesis 
the  works  of  Placentinus,  that  Italian  jurist  who  in  the 
12th  century  was  the  first  to  bring  into  France  the  schol- 
arly fruits  of  Bologna's  famous  School  of  Law ;  he  became 
a  professor  at  Montpellier,  and  died  there  in  1192.  In 

1  Professor  of  Philosophy  in  the  College  of  the  City  of  New  York. 


kxii    EDITORIAL  PREFACE  TO  THIS  VOLUME 

modern  France,  research  in  the  field  of  medieval  Roman 
Law  had  not  been  receiving  much  attention  at  the  perio'd 
of  Tourtoulon's  university  career;  but  it  had  progressed 
much  further  in  Italy,  and  particularly  in  Germany,  where 
the  work  of  Savigny,  in  the  first  half  of  the  19th  century, 
was  being  carried  forward  by  many  well-known  scholars. 
One  of  the  most  esteemed  of  these  was  Fitting,  professor 
at  Halle  (am  Saal).  Tourtoulon  now  proceeded  to  Halle, 
where  he  worked  under  Fitting's  direction  for  several 
years. 

In  1896,  he  returned  to  Montpellier  to  take  his  doctor's 
degree  in  law;  the  title  of  his  thesis  was,  "  Placentinus,  his 
Life  and  Works."  Continuing  his  researches  in  the  field 
of  medieval  legal  history,  he  published,  in  1898,  "Jacobus 
de  Ravanis;  a  study  based  on  unpublished  MSS.  in  the 
National  Library  at  Paris;"  in  1900,  "The  Glosses  of 
Irnerius  in  the  pre-Accursian  Gloss;"  and  in  1917,  "The 
Velleian  Law  in  the  Glossators." 

Meantime,  Tourtoulon  had,  at  Paris,  enlarged  the  field 
of  his  researches  to  include  general  history  of  law;  and  in 
1899  he  was  appointed  lecturer  on  the  History  of  Civil 
Procedure,  at  the  University  of  Lausanne  in  Switzer- 
land. Here  he  was  also  given,  by  Professor  Brocher  de  la 
Flechere,  the  conduct  of  a  part  of  the  latter's  course  in  the 
general  History  of  Law.  He  was  appointed  Professor  of 
the  History  of  Law  in  1902,  and  was  elected  Dean  of  the 
Faculty  of  Law  of  Lausanne  in  1920.  In  1897  he  was 
elected  a  member  of  the  Academy  of  Aix-en-Provence;  in 
1899,  of  the  Academy  of  Legislation;  and  in  1900,  of  the 
Academy  of  Padua. 

The  University  of  Lausanne,  especially  in  the  field  of 
law  and  political  science,  has  a  distinguished  past,  reach- 
ing back  to  the  foundation  of  the  Lausanne  Academy  by 
Beza  (the  assistant  and  successor  of  Calvin),  Barbeyrac, 
and  other  scholars.  The  teaching  of  the  History  of  Law 
has  at  this  University,  by  long  tradition,  some  features 


EDITORIAL  PREFACE  TO  THIS  VOLUME    xxiii 

which  rather  mark  it  off  from  the  course  as  usually  con- 
ducted in  Continental  schools.  It  seeks  to  deal  with  uni- 
versal history,  not  confining  itself  to  national  boundaries. 
Moreover,  it  does  not  draw  any  sharp  line  of  distinction 
between  the  history  of  law  and  the  philosophy  of  law,  on 
one  side,  or  the  technique  of  law  on  the  other  side.  This  is 
illustrated  by  the  chain  of  personalities  who  were  the 
predecessors  of  Tourtoulon  in  that  chair,  —  Hornung, 
eminent  as  a  legal  philosopher;  Secretan,  father  of  the 
eminent  philosopher  of  that  name;  Roguin,  a  legal  tech- 
nician and  logician  of  the  first  rank,  author  of  "The  Rule 
of  Law"  (discussed  in  the  present  volume)  and  of  the 
standard  modern  treatise  on  "Comparative  Law  of 
Succession";  and  Brocher  de  la  Flechere,  his  immediate 
predecessor,  a  scholar  whose  profound  contributions  in 
comparative  law  and  other  fields  deserve  to  be  better 
known  in  this  country. 

The  traditions  of  this  chair  have  thus  inspired  Tour- 
toulon to  give  to  his  researches  and  lectures  that  free 
range  of  thought  which  would  liberate  the  history  of  law 
from  any  conventional  limitations,  and  would  enable  it  to 
seek  universal  bases  for  its  explanations  and  conclusions. 


1.  For  the  last  century,  Legal  History  has  been  pre- 
dominantly a  stronghold  of  ideaphobia  and  distrust  of 
philosophy.  Imbued  with  the  principle  of  Induction,  as 
preached  by  empirical  philosophers,  men  supposed  it 
simpler  to  find  out  the  facts  of  the  past  and  arrange  them 
in  historic  order,  than  to  face  the  complicated  contem- 
porary situation  and  interpret  present  facts  in  the  light  of 
unerdlying  principles.  But  while  a  certain  uncontempla- 
tive  digging  for  facts  buried  in  old  documents  or  year- 
books, or  a  semi-mechanical  arrangement  of  them  in  chron- 
ologic order,  is  easy  enough,  it  does  not  constitute  signifi- 
cant History.  The  true  historian  must  know  the  mean- 


xxiv    EDITORIAL  PREFACE  TO  THIS  VOLUME 

ing  of  the  facts  he  wishes  to  get  at;  and  the  interpretation 
or  meaning  of  past  facts  is  at  least  as  complicated  as  that 
of  present-day  facts. 

Legal  history  cannot  therefore  be  intelligently  pursued 
without  general  ideas  as  to  human  purposes,  causation, 
and  historic  laws,  as  well  as  ideas  as  to  the  meaning  of 
laws  and  legal  institutions.  For  Law  is  one  of  the  means 
by  which  man  tries  to  control  his  fate ;  and  a  careful  his- 
torian, one  as  little  addicted  to  "a  priori"  considerations 
as  Vinogradoff,1  cannot  but  be  impressed  with  this  aspect 
of  his  material. 

Of  course  the  legal  historian  may  not  be  conscious  of 
the  general  or  philosophic  ideas  at  the  basis  of  his  assump- 
tions and  procedure.  One  can  walk  well  without  giving 
much  attention  to  the  laws  of  mechanics  and  physiology. 
But  in  the  higher  reaches  of  thought,  when  we  come  to 
more  complicated  situations,  conscious  resort  to  principles 
becomes  necessary.  To  hide  from  ourselves  the  general 
principles  which  we  do  in  fact  follow,  and  to  delude  our- 
selves into  the  belief  that  we  have  no  philosophy,  is  cer- 
tainly not  conducive  to  clear  thinking.  In  any  case,  it 
is  highly  desirable  for  one  engaged  in  the  history  of  Law 
to  make  the  leading  ideas  of  his  science  the  object  of 
careful  study.  This  is  what  Professor  Tourtoulon  has 
done  in  the  volume  before  us. 

The  result  is  a  philosophy  of  law  somewhat  different 
from  the  usual  treatises  on  the  subject.  It  does  not  deal 
directly  with  the  usual  problems  as  to  the  fundamental 
principles  or  elements  of  the  law,  or  of  its  leading  institu- 
tions, such  as  personality,  property,  or  family.  It  starts 
rather  with  the  law  as  an  active  entity,  and  considers  the 
logical  and  psychological  aspects  of  its  life  and  growth. 

2.  Tourtoulon  does  not  appear  in  this  volume  as  an 
avowed  disciple  of  any  particular  philosophic  school.  In- 
deed, he  seems  to  eschew  the  method  peculiar  to  technical 
1  Vinogradoff ,  "Historical  Jurisprudence,"  Parts  I  and  II. 


EDITORIAL  PREFACE  TO  THIS  VOLUME    xxv 

philosophers,  viz.,  the  dialectic  development  of  first  prin- 
ciples. He  is  too  wise  to  try  to  fit  the  complicated  legal 
world  within  the  hard  and  narrow  confines  of  abstract 
formulae.  He  relies  rather  on  the  rich  intuitive  insights 
of  a  keen  and  well-informed  mind,  which  constantly  carry 
him  to  the  heart  of  things.  With  extraordinary  good 
sense  he  turns  the  lancet  of  judicious  scepticism  on  the 
commonly  accepted  first  principles,  and  reveals  the  di- 
verse confused  thoughts  which  the  accepted  phrases  serve 
to  cover.  This  he  does  in  the  interest,  not  of  negative 
dogmatism,  but  of  intellectual  prudence,  kindly,  scrupu- 
lous and  searching. 

This  good  sense  shows  itself  characteristically  in  his 
attitude  to  the  doctrine  of  Social  Evolution.  He  refuses  to 
swallow  the  popular,  but  altogether  unscientific,  dogma 
that  there  is  a  "single  determinate  direction  along  which 
all  social  institutions  are  forever  bound  to  go."    Against 
evolutionary  and  other  teleologies  he  wisely  cautions  us 
that  men  are  too  prone  to  look  for  a  single  purpose  in  that 
which  is  the  resultant  of  many  causes.    He  distrusts  the) 
type  of  Legal  History  in  which  the  law  develops  dialec-j  ; 
tically  out  of  its  own  concepts  —  the  dialectic  evolution 
made  fashionable  by  Hegel.     Law  develops  largely  be-     ^ 
cause  of  conditions  under  which  it  is  administered,  and  to 
which  it  must  be  applied ;  and  this  truth  he  well  illustrates 
by  the  variation  of  the  law  as  to  servitudes  and  ease- 
ments of  light  in  Mohammedan  and  Byzantine  countries. 

But  precisely  because  he  is  too  full  of  the  sense  of  the 
complexity  of  the  causes  of  human  events,  he  also  avoids 
the  too  simple  doctrinaire  form  of  the  economic  interpre- 
tation of  legal  history;  though  he  rightly  recognizes  the 
fact  that  people  generally  rebel  against  wrongs  more 
energetically  when  their  own  interests  are  affected. 

Our  author  is  also  on  guard  against  the  popular  Spen- 1 
cerian  myth  of  a  universal  law  of  Evolution   from  the 
simple  to  the  complex  —  for  it  is  popular,  doubtless,  be- 


xxvi    EDITORIAL  PREFACE  TO  THIS  VOLUME 

cause  it  enables  us  to  construct  history  "a  priori"  without 
the  arduous  labor  of  critical  historic  research.  Tour- 
toulon  puts  his  finger  on  the  essential  weakness  of  this 
formula  as  a  key  to  history  when  he  points  out  that  what 
is  simple  to  us  may  not  have  been  so  in  previous  times. 

Equally  judicious  are  his  remarks  on  the  relation  of 
Law  to  Natural  Selection.  He  is  courageously  honest  in 
recognizing  that  in  all  forms  of  society  the  weaker  are 
pushed  to  the  wall  and  eliminated,  even  when  they  are 
least  aware  of  it.  "The  scythe  of  death  has  the  most 
attractive  ribbons  attached  to  it."  He  is  as  pitiless  as 
Huxley  in  showing  up  the  pious  humbugs  which  obscur- 
antists read  into  the  phrase,  "survival  of  the  fittest." 
Survival  is  a  physical  fact,  and  the  fitness  is  determined 
by  physical  factors.  The  moral  qualities  associated  with 
such  physical  fitness  are  certainly  not  always  desirable. 
Good  men  often  do  not  survive,  precisely  because  they 
devote  themselves  to  causes  other  than  their  own 
survival.  And  the  social  qualities  which  make  men  asso- 
ciate for  mutual  aid  only  serve  to  make  them  more 
effective  exterminators  of  the  non-associated.  But  Law 
is  not  directly  a  biologic  fact,  and  it  is  a  mistake  to  stress 
the  analogies  between  the  biologic  struggle,  decided  by 
such  factors  as  fertility  and  immunity,  and  the  social 
struggles  which  the  law  regulates. 

Tourtoulon's  method  of  beginning  each  chapter  with 
abstract  considerations  may  sometimes  produce  the  ap- 
pearance of  a  fondness  for  abstract  and  over-subtle  dis- 
tinctions. But  the  ensuing  treatment  in  the  chapter  gen- 
erally shows  these  distinctions  to  be  weighty  and  impor- 
tant. This  is  especially  true  in  the  psychologic  chapters. 
A  good  example  is  his  distinction  between  Collective  and 
Social  Thought,  —  a  distinction  which  puts  us  on  guard 
against  the  usual  uncritical  assumption  that  the  laws  or 
resolutions  of  a  group  necessarily  represent  the  thought 
of  the  individual  members  in  isolation, 


EDITORIAL  PREFACE  TO  THIS  VOLUME     xxvii 

Against  the  older  Rationalism,  which  started  with  the 
idea  of  man  as  a  rational  being  and  regarded  all  legal  in- 
stitutions as  adapted  to  their  end,  there  has  recently 
arisen  an  Irrationalism,  which  finds  the  rational  adapta- 
tion of  means  to  ends  only  in  the  realm  of  the  subcon- 
scious or  unconscious.  Here  Tourtoulon  treads  his  way 
with  circumspection,  drawing  nice  distinctions  between 
desire  and  will,  and  not  disdaining  to  notice  the  features 
of  the  law  which  make  it  a  sport  or  social  recreation. 
Man  is  an  emotional  being  in  his  legal  as  well  as  in  his 
other  relations.  Emotions  as  such  are  neither  logical) 
nor  illogical,  but  alogical.  Hence  it  is  a  fallacy  to  assume' 
that  all  laws  enacted  under  the  influence  of  strong  feeling, 
or  passion,  are  necessarily  bad.  For  no  laws  are  ever 
made  without  the  influence  of  feeling,  and  it  is  not  wise 
to  ignore  this  fact.  The  law  has  its  roots  in  the  affections 
which  men  have  for  the  institutions  under  which  theyy' 
grow  up.  The  practical  consequences  which  Tourtoulon 
draws,  such  as  the  need  of  liberal  institutions  for  peoples 
of  mixed  races,  seem  of  unusual  worth  for  American  jurists. 
Democracies  •  are  apt  to  be  impatient  and  intolerant  of 
natural  diversity,  and  are  perhaps  less  likely  to  exercise 
the  fine  wisdom  of  inactivity  which  made  the  leaders  of 
the  Church  of  England  declare  (Art.  34), "It  is  not  neces- 
sary that  Traditions  and  Ceremonies  be  in  all  places  one 
or  utterly  alike."  Against  ^unreflecting  haste  in  seeking 
uniformity,  and  against  those  who  regard  mere  "mixing" 
or  sociability  as  the  fount  of  all  virtues,  Tourtoulon  does 
well  to  point  out  the  necessity  for  protecting  within 
proper  limits  the  rights  of  natural  aversion,  —  the  right  to 
ignore  those  to  whose  ways  we  are  not  drawn.  Only  by 
ignoring  each  other  sufficiently,  as  we  learn  to  do  in  large 
cities,  can  we  peacefully  live  side  by  side  in  large  numbers 
and  still  be  ready  to  co-operate  in  case  of  need. 

Against  the  recent  tendency  to  replace  all  individual 
psychology  by  Social  Psychology,   and  to  seek  in  the 


xxviii    EDITORIAL  PREFACE  TO  THIS  VOLUME 

flatter  (as  does  the  school  of  Durkheim)  the  basis  of  all 
;  law,  Tourtoulon  has  some  very  pertinent  criticism.  His 
conclusions  judiciously  indicate  the  truth  bet  ween  the 
social  or  national  emphasis  of  Savigny  and  the  individu- 
alism of  Jhering.  Lawyers  may  find  the  chapter  on 
social  psychology  difficult  reading ;  but  if  it  does  nothing 
else  it  will  save  them  from  being  overawed  by  the  pre- 
tended "science"  of  Social  Psychology.  The  latter's 
devotees  are  full  of  pious  programs  and  hopes,  but  as  yet 
offer  little  substantial  scientific  achievement,  resorting  as 
they  do  to  the  most  uncritical  elaboration  of  material 
derived  at  second  hand  from  unreliable  sources.  It  would 
be  well  if  the  lawyer's  training  in  sifting  evidence  could 
be  applied  to  the  evidence  of  folk-lore  and  popular  an- 
thropology at  the  basis  of  our  popular  social  psychology. 

The  chapter  on  the  Maladies  of  Thought,  with  its  refer- 
ences to  mythologies  in  law,  is  a  new  and  substantial  con- 
tribution to  legal  philosophy.  It  shows  that  many  phe- 
nomena which  have  been  the  subject  of  elaborate  rival  ex- 
planations can  be  more  readily  understood  in  the  light  of 
the  well-known  weaknesses  of  the  human  mind,  such  as 
credulity,  aversion  to  face  unpleasant  or  rigorous  truth, 
and  so  on. 

Students  of  law  will  find  in  the  chapters  on  the  Simple 
Rational  one  of  the  best  available  treatises  on  juristic 
technique.1  Definition,  Analysis,  Maxims,  Analogy, 
Fiction,  juristic  "Construction,"  are  all  treated  with  a 
wealth  of  learning  and  suggestive  insight.  Especially 
valuable  is  the  treatment  of  the  function  of  Analysis  in 
controlling  legal  procedure  and  isolating  the  point  at 
issue.  Students  of  the  old  forms  of  action  and  of  the 
Anglo-American  common  law  pleading  will  readily  be 
able  to  extend  these  observations.  In  the  treatment  of 
Fictions,  also,  the  remark  that  many  fictions  are  due  to 

^hrlich's  "Juristische  Logik"  was  not  available  at  the  time  this 
volume  was  written. 


EDITORIAL  PREFACE  TO  THIS  VOLUME    xxix 

an  aversion  for  saying  unpleasant  things,  suggests  how 
closely  the  fictions  which  are  the  courtesies  of  the  law  are 
related  to  other  forms  of  social  ceremonies.  The  refer- 
ence to  the  rowers  in  Mistral's  "La  Reine  Jeanne,"  who, 
not  certain  of  their  objective,  decide  to  row  as  if  the 
fairy  castle  were  there,  contains  a  wisdom  wider  than 
the  law. 

3.  Tourtoulon's  account  of  Fictions,  however,  leads  us 
to  place  on  record  here  a  query  as  to  the  adequacy  of  his 
classification.  We  venture  to  express  the  opinion  that  it 
does  not  sufficiently  discriminate  the  different  types  of 
fictions  included  under  one  head.  In  his  exposition, 
numerous  varieties  —  linguistic  short  cuts  for  purposes  of 
exposition,  artificial  concepts  or  devices  for  purposes  of 
simplifying  the  subject,  verbal  conventions,  euphemisms, 
metaphors,  hypothetical  reasoning,  and  reasoning  about 
types  —  are  all  treated  under  the  same  rubric.  More- 
over, we  differ  even  more  assuredly  from  him  in  declining 
to  accept  his  inference  that  logic  is  not  applicable  to  fic- 
tions, to  juridical  constructions,  and  to  juridical  science 
generally  (so  far  as  the  latter  is  not  merely  a  study  of  ex- 
isting facts).  This  untenable  (as  we  believe)  inference 
(in  which  Tourtoulon  partly  accords  with  Geny's  "Science 
et  Technique  en  Droit  Prive")  is  due  to  the  fact  that  his 
conception  of  Logic  does  not  extend  beyond  the  tradi- 
tional school  Logic.  At  this  point  we  offer  the  following 
considerations  for  the  reader's  comparison  with  the 
author's  views. 

The  traditional  Logic,  from  Aristotle  to  Mill,  is  essen- 
tially the  logic  of  classificatory  zoology  and  botany  — 
the  only  natural  sciences  which  these  great  men  knew  at 
first  hand.  While  it  is  undoubtedly  capable  of  extension, 
it  is  best  fitted  only  for  the  classification  of  existing  things 
and  their  inhering  qualities.  Tourtoulon,  therefore,  natu- 
rally feels  that  this  logic  is  not  directly  applicable  to 
fictions  and  legal  constructions;  for  there  we  are  dealing 


xxx    EDITORIAL  PREFACE  TO  THIS  VOLUME 

with  the  non-existing,  and  with  questions  not  of  truth 
but  of  fitness. 

But  the  term  Logic  also  denotes  the  correctness  of  the 

r       7/  '    iikL'V^l'''^**"*^^ 

conclusions  drawn  from  premises.  It  must  not  be  con- 
ceded  that  we  cannot  draw  valid  inferences  when  our 
premises  relate  to  questions  of  fitness  or  the  adaptation 
of  means  to  ends.  If  juristic  procedure  were  to  be  ruled 
out  from  Science  on  that  ground,  we  should  also  have  to 
rule  out  a  most  perfect  physical  science  like  Mechanics, 
which  (as  Hertz  has  shown  in  the  introduction  to  his 
"Mechanics")  decides  questions  ultimately  in  terms  of  the 
fitness  of  a  system  of  propositions.  There  are  doubtless 
differences  of  degree,  in  the  vagueness  of  the  data,  be- 
tween Jurisprudence  and  Mechanics;  but  there  is  no 
fundamental  difference  in  Logic.  Perhaps  Tourtoulon 
is,  also,  carried  too  far  by  his  definition  of  Fictions  as 
"falsehoods  which  deceive  no  one."  It  may  be  main- 
tained that  in  reality  the  law  does  not  assert,  e.g.  that  an 
adopted  son  is  a  natural  son,  or  that  the  high  seas  are  in 
a  given  parish  in  London.  What  is  essential  is  that  the 
law  grants  to  certain  persons  the  same  rights  which  it 
grants  to  natural  sons,  and  that  it  applies  the  same  rule 
to  events  at  sea  which  it  applies  to  events  on  land.  It 
would  clearly  be  unfortunate,  practically  and  theoreti- 
cally, if  the  law,  after  it  had  decided  to  make  such  exten- 
sions of  its  rules,  should  give  up  the  effort  to  carry  them 
out  logically. 

It  is  matter  for  regret  that  this  wider  conception  of 
Logic  as  dealing  with  the  correctness  of  inferences  from 
all  sorts  of  assumptions,  whose  subject  matter  may  be 
conventions  (as  in  mathematics),  resolutions  (as  in  the 
moral  sciences),  or  idealizations  (as  in  the  exact  physical 
sciences),  is  not  yet  generally  available  to  the  educated 
public.  Some  material  on  this  theme  will  be  found  viva- 
ciously presented  in  Vaihinger's  recent  work,  "Philos- 
ophic des  Als  Ob"  (a  work  which  receives  careful  and 


EDITORIAL  PREFACE  TO  THIS  VOLUME    xxxi 

illuminating  comment  in  Professor  Tourtoulon's  Appen- 
dix). Unfortunately,  however,  that  book  is,  as  its  author 
admits,  a  work  of  immature  youth.  By  trying  to  explain 
everything  as  fiction,  making  the  "make  believe"  or  "as  if" 
cover  everything,  the  distinctive  characteristic  of  legal 
fictions  and  constructions  is  lost.  But  the  essential  unity 
of  Logic  in  the  physical  and  social  sciences  is  there  brought 
out,  despite  a  woeful  amount  of  misinformation. 

4.  As  one  who  deals  honestly  with  fundamentals,  Tour- 
toulon  cannot  avoid  touching  on  the  metaphysical  aspects 
of  the  law  (for  Metaphysics,  it  is  well  to  be  reminded,  is 
but  the  obstinate  effort  to  think  clearly  as  far  as  the  human 
mind  can  go) .  This  he  does  more  specifically  in  the  chap- 
ters on  "  Pure"  Law  and  on  Metaphysical  Law. 

In  these  chapters  Tourtoulon  shows  himself  profoundly 
influenced,  not  only  by  Geny  and  by  his  own  colleague 
Roguin,  but  even  more  so  by  the  Neo-Kantian  meta- 
physics of  Stammler,  as  expounded  by  his  disciples 
Djuvara  and  Reinach.  But  while  our  author  thus 
persistently  asserts  the  existence  of  "a  priori "  elements 
in  the  law,  he  also  keeps  to  the  old  positivistic  assump- 
tion that  logic  and  scientific  demonstration  can  deal  only 
with  empirical  facts  of  existence.  This  places  his  meta- 
physical doctrines  of  "Pure  Law"  and  Justice  in  the 
anomalous  position  of  being  logically  indemonstrable,  and 
yet  categorically  necessary. 

It  is  Professor  Tourtoulon's  respect  for  Kant  and  for 
the  transcendental  philosophy  which  here  leads  him  to 
support  a  good  deal  of  genuine  and  profound  insight  by 
arguments  that  students  of  modern  logic  and  mathematics 
believe  to  be  obsolete  and  untenable.  A  careful  analysis 
is  necessary  to  disengage  what  is  sound  from  what  is,  in  our 
opinion,  unsound  in  his  position.  We  permit  ourselves 
here  a  few  words  in  explanation  of  the  foregoing  comment : 

Kant  wrote  at  a  time  when  people  thought  they  knew 
with  absolute  certainty  that  space  must  follow  the  laws 


xxxii   EDITORIAL  PREFACE  TO  THIS  VOLUME 

of  three-dimensional  Euclidean  geometry.  This  cer- 
tainty (as  Kant  clearly  saw)  could  rest  only  on  "a  priori" 
intuition.  The  later  development  of  non-Euclidean  ge- 
ometry, however,  has  clearly  shown  that  this  absolute 
certainty,  or  "a  priori"  intuition,  is  a  delusion,  —  that  in 
fact  we  have  no  means  of  asserting  in  advance  of  experi- 
ence what  system  of  geometry  nature  will  actually  fol- 
low. The  realization  that  the  axioms  of  our  most  per- 
fect science,  Euclidean  Geometry,  are  not  categorically 
certain,  but  are  rather  only  convenient  hypotheses,  in- 
evitably makes  us  distrust  all  propositions  claimed  to  be 
categorically  true,  intuitively  certain,  or  self-evident. 
This  distrust  is  naturally  more  justified  in  the  variable 
realm  of  Law.  Tourtoulon  frequently  argues  that  just 
as  all  the  facts  of  arithmetic  presuppose  the  category  of 
quantity  as  "a  priori,"  so  do  the  facts  of  Law  presup- 
pose certain  categories.  This  argument,  as  we  view  it, 
breaks  down  when  we  see  modern  arithmetic  developed 
without  presupposing  the  category  of  quantity  at  all. 
Indeed  all  the  Kantian  epistemologic  arguments  from 
facts  to  the  certainty  of  their  presuppositions  simply  illus- 
trate the  logical  fallacy  of  arguing  from  the  affirmation  of 
the  consequences.  All  our  presuppositions  are  really 
only  hypotheses  to  explain  the  facts,  and  the  certainty  of 
the  facts  (if  they  are  certain)  may  confirm  but  cannot 
prove  the  hypotheses  which  explain  them. 

Yet,  despite  all  this,  there  is  a  large  share  of  truth  in 
|  Tourtoulon's  assertion  that  there  are  certain  elements  of 
/  the  law  logically  prior  to,  or  independent  of,  the  empir- 
.ical  existence  of  human  life.    This  truth  can  readily  be 
recognized  if  we  clearly  distinguish  between  principles  of 
procedure  and  substantive  principles.     That  which  sub- 
stantially exists  in  natural  time  and  space  is  essentially 
changeable,  and  one  can  never  have  any  absolute  knowl- 
edge of  what  is  past  or  future.    But  when  we  examine  the 
principles  of  procedure  of  all  sciences,  we  find  certain  in- 


EDITORIAL  PREFACE  TO  THIS  VOLUME    xxxiii 

variant  relations  between  all  premises  and  their  conse- 
quences. These  principles  of  logic  we  do  not  create.  We 
find  them.  But  without  them  no  valid  argument  as  to  any- 
thing actual  or  possible  can  be  constructed.  Now  the 
principles  according  to  which  all  conclusions  follow  from 
their  assumed  premises  do  not  change  with  time,  for  the 
simple  reason  that  it  is  meaningless  to  speak  of  abstract 
relations  existing  in  time.  (Abstract  relations  can  only 
be  said  to  exist  logically,  if  we  mean  by  this  simply  to 
assert  their  universal  validity  for  all  possible  arguments.) 
To  the  extent,  then,  that  Law  necessarily  depends  on 
Logic  for  its  elaboration,  Professor  Tourtoulon  is  in  our 
opinion  perfectly  correct  in  insisting  that  the  logical  ele- 
ment of  Law  is  independent  of  any  human  institution,  t  < 
For  it  would  be  absurd  to  try  to  derive  or  prove  the  prin-  K 
ciples  of  Logic  from  the  instances  in  which  they  are  em- 
bodied. To  claim  validity,  every  such  demonstration 
would  have  to  assume  the  very  principles  it  tried  to 
prove.  But  these  logical  principles  are  negative  and 
regulative;  they  do  not  determine  the  matter  or  partic- 
ular premises  of  any  one  science,  precisely  because  they 
are  the  regulating  principles  of  all  sciences. 

Our  view  of  the  author's  position  may  perhaps  be  ren- 
dered a  little  plainer  by  considering  the  two  stages  of  his 
argument,  which  we  may  refer  to  as  (a)  the  stage  of  Roguin, 
and  (6)  the  stage  of  Reinach. 

(a)  Roguin  has  insisted  that  some  elements  are  neces- 
sarily found  in  all  legal  systems  actual  or  possible.  This  is 
obviously  a  matter  of  definition.  If  by  "legal  system" 
we  mean  anything  at  all,  we  mean  some  set  of  relations. 
It  follows,  then,  that  every  legal  system  will  be  subject 
to  the  logical  rules  according  to  which  these  elements  can 
possibly  be  combined.  If  you  encounter  a  system  in 
which  these  elements  do  not  exist,  it  will  by  definition  not 
be  a  legal  system  at  all.  Such  an  abstract  development 
of  legal  logic  possesses  (as  Roguin  and  Tourtoulon  have 


xxxiv    EDITORIAL  PREFACE  TO  THIS  VOLUME 

indicated)  great  usefulness  as  an  auxiliary  science.1  It 
opens  up  the  field  of  possible  solutions  to  concrete  legal 
problems,  and  thus  saves  us  from  falling  into  the  natural 
dogmatic  assumption  that  any  particular  solution  which 
happens  to  occur  to  us  is  the  only  possible  one.  When, 
however,  this  abstract,  or  "pure"  law  is  used  by  itself 
apart  from  a  full  appreciation  of  the  complex  actual  or 
historic  facts,  it  is  apt  to  produce  the  very  opposite  effect 
of  closing  our  minds  to  the  concrete  possibilities  before  us. 
This  is  amply  illustrated  by  judges  or  jurists  who  in  their 
anxiety  to  be  rigorously  logical  fall  into  the  vice  of  false 
simplicity  which  Jhering  has  called  "  Begriff  sjurispru- 
denz,"  and  Pound,  "Mechanical  Jurisprudence." 

(6)  Reinach's  "Die  A  Priorische  Grundlagen  des  Biir- 
gerlichen  Rechts"  appeared  originally,  in  Husserl's  Jahr- 
buch.  As  Tourtoulon's  reference  to  Husserl's  philosophy 
is  very  brief,  a  few  remarks  about  it  may  be  in  order.  The 
philosophy  of  Husserl,  following  that  of  Meinong,  is 
rooted  in  an  insight  of  the  inadequacy  of  the  old  positiv- 
istic  logic  which  assumed  that  logical  demonstration  is 
concerned  only  with  what  actually  exists.  As  the  life  of 
all  mathematical  or  theoretic  sciences  consists  in  the  de- 
velopment of  the  consequences  of  rival  hypotheses  (which 
development  is  necessary  before  we  can  conceive  of  cru- 
cial experiments  to  decide  the  rival  claims),  and  as  con- 
trary hypotheses  cannot  all  be  true,  it  follows  that  a  great 
deal  of  the  life  of  science  consists  in  developing  the  con- 
sequences of  hypotheses,  irrespective  of  whether  these 
hypotheses  are  true  or  not.  Moreover,  in  sciences  like 
mechanics  or  thermodynamics,  our  reasoning  proceeds 
from  assumptions  as  to  free  bodies  or  frictionless  engines, 
though  such  bodies  cannot  possibly  exist  in  nature.  This 
means  that  there  is  a  scientific  point  of  view  from  which 

1  Admirable  work  along  this  line  has  been  done  by  Bierling  and 
Binding  in  Germany,  and  by  Pound  and  Kocourek  and  the  lamented 
Hohfeld  in  this  country 


EDITORIAL  PREFACE  TO  THIS  VOLUME    xxxv 

hypotheses  or  assumptions  have  logical  characteristics, 
apart  from  the  question  whether  their  subject  matter  has 
actual  existence. 

This  enlargement  of  the  conception  of  valid  Logic  has 
many  important  applications  to  juristic  study.  For  one 
thing,  it  renders  nugatory  the  positivistic  ideal  of  juristic 
science  as  dealing  only  with  what  is.  It  shows  us  that  a 
science  of  what  ought  to  be,  of  desirable  or  just  law,  may 
be  logically  as  rigorous  as  mathematics.  It  also  enables 
us  to  dispense  with  Geny's  artificial  and  misleading  dis- 
tinction between  "science"  and  "technique"  in  law,  since 
it  shows  that  science  is  itself  a  technique,  and  that  no 
technique  can  dispense  with  logic  in  its  elaboration. 

Unfortunately,  however,  Reinach's  own  study  seems 
far  more  influenced  by  the  traditional  Kantian  concep- 
tions "a  priori"  than  by  the  newer  logical  philosophies. 
He  is  not  satisfied  to  maintain  merely  that  Law  must  be 
subject  to  the  regulative  principles  of  logic,  but  seeks  to 
establish  substantive  legal  principles,  "a  priori,"  going  as 
far  as  to  maintain,  e.g.  that  the  obligation  to  keep  promises 
is  "a  priori"  necessary  for  all  legal  systems  —  a  proposi- 
tion which  is  not  only  far  from  necessary,  but  actually  false. 
No  known  legal  system  makes  all  promises  legally  ob- 
ligatory. The  distinction  between  those  which  are  and 
those  which  are  not  so  obligatory  clearly  depends  on  em- 
pirical elements.  Similar  considerations  hold  with  re- 
gard to  Professor  Tourtoulon's  attempt  to  establish  as 
"a  priori"  the  distinction  between  private  and  public  law, 
or  the  distinction  between  rights  over  animate  and  rights 
over  inanimate  objects.  We  can  no  more  deduce  material 
generalizations  or  distinctions  from  the  formula  or  regu- 
lative principles  of  logic  alone  than  we  can  get  a  house 
by  merely  manipulating  the  rules  of  architecture. 

5.  These  abstract  considerations  will  also  assist  us  to 
pronounce  in  what  respect  our  author's  theory  of  Justice 
is  tenable  and  in  what  respect  untenable. 


xxxvi    EDITORIAL  PREFACE  TO  THIS  VOLUME 

To  define  Justice  as  "the  according  to  each  that  which 
is  his  own  or  his  due"  ("suum  cuique  tribuere")  might 
seem  at  first  perfectly  futile.  Tourtoulon's  example  of 
Talmudic  casuistry,  in  reference  to  the  ownership  of  a 
house,  shows  how  slippery  is  the  question,  What  is  a 
man's  own?  Indeed,  it  is  the  very  object  of  a  theory  of 
Justice  to  define  what  is  justly  a  man's  own.  To  assert 
that  everyone  is  justly  entitled  to  keep  whatever  he 
actually  possesses  would  be  a  monstrous  perversion  of 
what  has  generally  been  meant  by  Justice.  A  number  of 
attempts  have  been  made  to  avoid  this  difficulty ;  but  they 
have  not  succeeded.  Thus  it  is  urged,  that  in  virtue  of 
being  the  first  occupant,  Robinson  Crusoe  is  justly  the 
owner  of  his  island.  It  is  "his."  But  it  is  by  no  means 
self-evident  that  it  is  just  for  him  to  exclude  other  persons 
subsequently  shipwrecked  upon  the  island,  even  if  all  the 
available  food  on  the  island  were  the  result  of  his  own 
labor.  If  the  poor,  weak,  or  helpless  have  a  just  right 
to  life,  others  cannot  have  a  just  right  to  exclude  them 
from  the  means  of  maintaining  life.  The  doctrine  that 
(each  is  entitled  to  the  full  produce  of  his  labor  is,  as  an 
!(§Bs6IuteA proposition,  untenable.  Another  example  is  the 
claim  that  a  man's  personality  is  his  by  nature,  and  that 
no  one  has  a  right  to  interfere  with  it;  whence  it  is  con- 
cluded that  slavery  is  always  and  absolutely  unjust.  But 
here  again  we  are  apt  to  be  misled  by  words.  If  slavery 
denotes  an  unjustifiable  interference  with  personality,  it 
is  obviously  unjust  by  definition.  But  to  say  that  all  in- 
terference with  personality  is  unjust,  even  for  the  purpose 
of  correction,  or  of  preventing  harm,  is  to  make  justice 
absolutely  useless  for  the  legal  regulation  of  society,  since 
all  law  involves  some  interference. 

Professor  Tourtoulon  has  the  courage  of  his  convic- 
tions and  recognizes  that  the  justice  which  he  defines  as 
the  "suum  cuique"  may  not  be  desirable  or  good.  But 
if  so,  why  should  we  ever  follow  Justice  at  all?  He  an- 


EDITORIAL  PREFACE  TO  THIS  VOLUME    xxxvii 

swers  that  Justice  is  not  a  principle  of  action,  but  of  evalu- 
ation. Yet  is  not  this  still  clearly  inconsistent  with  the 
sharp  distinction  between  justice  and  the  good  or  desir- 
able? How  can  we  evaluate  except  in  terms  of  the  good 
and  the  better? 

Nevertheless,  our  author's  doctrine  of  Justice  covers  a 
great  deal  of  shrewd  wisdom  having  fundamental  validity 
and  importance.  Whatever  characteristics  a  legal  sys- 
tem may  have,  it  must  (so  long  as  legality  means  what  it 
actually  does  mean  to  all  people)  include  lawfulness,  or 
the  regulation  of  conduct  by  general  rules  or  principles. 
Legal  Justice  then  means  that  laws  should  be  kept,  — 
that  we  cannot  have  a  law  and  yet  avoid  it  by  exceptions 
in  special  cases.  Equality  before  the  law,  or  the  impar- 
tiality of  the  judge,  amounts  to  just  this  faithfulness  or 
respect  for  the  law  that  is.  "Suum  cuique"  means  that, 
if  the  proper  legal  authority  has  awarded  a  disputed  prop- 
erty to  my  neighbor,  I  should  obey  that  decision  even  if 
I  consider  it  unjust.  This  principle  to  be  sure  cannot  be 
absolute.  There  are  times  when  the  actual  legal  order  is 
so  monstrously  unjust  that  patriotic  citizens  must  rebel. 
This,  however,  in  no  way  denies  that,  other  things  being 
equal,  lawfulness  or  legal  order  is  a  great  human  good,  and 
for  the  maintenance  of  it  men  at  all  times  are  willing  to 
endure  a  great  deal  of  material  injustice. 

The  formalist  sometimes  reaches  the  same  result  by  the 
following  dialectic  argument:  It  is  absolutely  or  categor- 
ically necessary  for  every  legal  system  to  maintain  legality 
and  that  which  supports  it;  for  the  legislator  cannot  pos- 
sibly issue  a  decree  or  command  that  there  should  be  no 
law.  Unfortunately,  however,  legislatures  sometimes 
actually  do  illogical  things.  Thus  for  many  years  there 
was  a  law  on  the  statute  books  of  New  York,  purporting 
(in  accordance  with  the  provision  of  the  State  constitu- 
tion) to  prohibit  and  prevent  gambling  at  the  race  tracks. 
Yet  the  actual  effect  of  the  law  was  to  protect  the  "book- 


xxxviii    EDITORIAL  PREFACE  TO  THIS  VOLUME 

makers,"  or  public  gamblers.  It  required  a  long  and  bit- 
ter struggle,  led  by  Governor  (afterwards  Justice)  Hughes, 
before  the  repeal  of  that  infamous  law  could  be  secured. 
This  illustration  may  suggest  the  danger  of  applying  the 
terms  of  absolute  logical  possibility  or  impossibility  to 
human  relations  such  as  those  of  the  law. 

In  order  to  maintain  his  metaphysical  conception  of 
Justice,  Professor  Tourtoulon  argues  that  men  could  not 
pursue  the  ideal  of  Justice  if  it  were  empirical  or  arose  in 
our  own  nature.  To  this  the  answer  might  be  made  that 
only  the  ideals  that  arise  in  our  own  nature  can  be  pursued 
at  all.  Certainly  bread,  or  the  welfare  of  our  children,  is 
no  less  desirable  because  hunger  or  parental  affection 
arises  in  our  own  nature. 

In  thus  venturing  to  submit  our  author's  meta- 
physical doctrines  of  "Pure  Law"  and  Justice  to  a  critical 
scrutiny,  we  only  follow  and  apply  the  candid,  critical 
spirit  which  he  himself  so  admirably  illustrates  through- 
out this  book,  and  more  especially  in  his  criticism  of  the 
positivist's  attempts  to  derive  rules  as  to  what  ought  to  be 
either  from  the  accumulation  of  past  facts,  or  from  the 
"social  nature"  of  man.  The  attempt  to  derive  concrete 
or  particular  consequences  from  metaphysical  assumptions 
alone  is  an  impracticable  one,  since  modern  logic  has 
shown  that  from  universal  premises  alone  no  particular 
conclusion  can  be  drawn.  For  true  universals  are  hy- 
potheses, and  from  no  accumulation  of  assumptions  alone 
can  we  derive  a  fact. 

6.  If  the  reader  ask,  Why  labor  at  this  arid  topic?  the 
answer  is  that  only  by  refuting,  or  at  least  mitigating,  the 
claim  of  metaphysical  absoluteness  put  forth  in  the  theory 
of  "Pure  Law"  and  Justice,  can  we  fully  justify  the  pro- 
found'and  mature  wisdom  which  Professor  Tourtoulon 
elsewhere  shows  throughout  this  volume,  —  the  wisdom 
of  moderation.  This  spirit  of  moderation  is  what  law- 
yers are  apt  to  have  developed  in  them  by  the  very  prac- 


EDITORIAL  PREFACE  TO  THIS  VOLUME    xxxix 

tice  of  their  profession ;  but  they  are  apt  to  forget  it  when 
they  come  to  formulate  their  views  theoretically.  The 
religious  reformer  can  aim  to  make  men  perfect.  Having 
the  absolute  truth  revealed  to  him,  he  knows  both  the 
absolute  goal  and  the  necessary  means.  Not  so  those 
who  deal  with  laws,  which  are  always  based  on  more  or 
less  rough  estimates  as  to  the  general  future  effects  of 
measures  designed  to  meet,  not  the  needs  of  everyone, 
but  only  those  of  the  generality.  Logical  rigor  in  juridi- 
cal thinking  is,  doubtless,  a  great  good.  As  our  author 
acutely  remarks,  those  (especially  theorists)  who  vaguely 
appeal  to  life  or  practice  generally  show  that  they  have  not 
the  stamina  to  follow  arguments  rigorously  to  their  logical 
conclusions.  But  the  principles  of  law  cannot  extend 
beyond  the  law  which  is  their  field  of  application. 

For  we  must  remember  that  not  the  whole  of  life  can 
be  legally  regulated,  and  that  the  supreme  virtue  of  the 
law,  Justice,  must  frequently  yield  to  the  more  humane 
virtue  of  Charity.  Those  who  care  for  pompous  rhetoric 
may  repeat  that  law  is  nothing  but  justice,  reason,  and  so 
on.  They  may  even  find  satisfaction  in  such  banal  cant 
as  that  law  protects  liberty  but  not  license.  But  an 
honest  jurist  like  Tourtoulon  knows  that  "to  define  lib- 
erty as  the  power  to  do  only  what  is  right  is  like  defining 
a  franc  as  a  piece  of  money  to  be  given  to  the  poor." 

The  lawyer,  like  the  physician,  sees  the  shadows  as  well 
as  the  lights  of  human  life;  and,  if  wise,  he  learns  not  to 
expect  too  much  of  the  law,  and  to  be  tolerant  of  human 
imperfection.  Such  a  sense  of  imperfection  and  spirit 
of  tolerance  is  one  of  the  best  safeguards  against  the  spirit 
of  fanaticism  which  uses  rigorous  principles  to  shut  the 
gates  of  mercy  on  mankind.  No  single  aphorism  so  well 
sums  up  this  viable  attitude  of  the  lawyer  as  our  author's 
dictum:  "There  is  no  need  to  throw  to  the  dogs  all  that 
is  not  fit  for  the  altar  of  the  gods." 


xl      EDITORIAL  PREFACE  TO  THIS  VOLUME 

It  remains  to  add  a  few  words  about  the  present  trans- 
lation. One  who  reads  the  book  will  realize  the  wide  learn- 
ing required  for  translating  it.  But  only  one  who  has 
compared  page  after  page  of  this  translation  with  the 
original  text  can  realize  to  what  a  remarkable  extent  Miss 
Read  has  successfully  combined  great  faithfulness  to  the 
original  with  idiomatic  fluency  in  the  rendering.  The 
editor  has  gone  over  the  entire  text  carefully  in  order  to 
guard  against  the  few  inevitable  slips  and  ambiguities  and 
to  bring  the  terminology  into  greater  harmony  at  certain 
points  with  current  usage  in  philosophy  and  jurisprudence. 
To  enable  the  size  of  this  volume  to  meet  the  required  for- 
mat of  this  Series,  it  was  necessary  to  omit  the  very  in- 
teresting body  of  illustrative  quotations  that  the  author 
appended  to  almost  every  chapter  of  the  original.  For 
the  same  reason  it  was  necessary  to  omit  a  few  introduc- 
tory sections  in  the  chapter  on  Races  (Book  II,  Chap.  IV) 
and  in  the  chapter  on  Law  and  Emotional  Life  (Book  II, 
Chap.  VIII).  The  temptation  to  add  explanatory  notes 
has  been  overcome  in  all  but  very  few  instances,  which 
are  indicated  in  square  brackets. 


INTRODUCTION  TO  THIS  VOLUME 


BY  ANDREW  A.  BRUCE  1 

When  asked  to  define  the  word  "Professor"  a  small 
boy  replied:  "They  are  of  three  kinds;  one  of  them 
teaches  dancing;  one  of  them  teaches  swimming;  and 
one  of  them  goes  up  in  a  balloon." 

To  many  a  practising  lawyer  the  modern  law  professor 
belongs  to  the  third  variety,  and  especially  does  he  who 
essays  to  be  a  philosopher.  In  the  eyes  of  the  public,  all 
philosophers  are  metaphysicians,  and  the  metaphysician 
is  in  popular  disfavor.  A  Scotchman  once  suggested  that 
"when  a  mon  who  dinna  ken,  taks  aboot  that  which  he 
canna  comprehend,  to  a  mon  who  doesna  understand, 
then,  Sir,  that  is  Metaphysics";  and  the  man  in  the 
street  is  apt  to  agree  with  him. 

But  the  theorist  of  today  is  often  the  practical  man  of 
tomorrow.  The  balloon  developed  into  the  aeroplane. 
All  philosophers  and  thinkers  are  not  metaphysicians; 
some  metaphysicians  have  at  least  human  intelligence; 
and  some  philosophers  and  metaphysicians  can  talk  so 
that  the  layman  can  understand. 

To  this  chosen  few  de  Tourtoulon  belongs.  He  at  least 
seems  to  understand.  He  at  least  makes  us  believe  that 
we  understand.  He  makes  it  clear  that  back  of  the  con- 
crete practical  law  is  the  abstract  ideal,  and  the  philo- 
sophic concept;  and  that,  though  the  legislative  body 
which  enacts  a  statute,  or  the  judge  who  enforces  it  and 
gives  to  it  its  legal  sanction,  may  not  always  understand, 

'Former  Chief  Justice  of  the  Supreme  Court  of  North  Dakota, 
and  now  Professor  of  Law  in  the  University  of  Minnesota, 

xli 


xlii        INTRODUCTION  TO  THIS  VOLUME 

it  is  a  belief  in  the  understanding  of  others  that  leads  to 
the  enactment.  He  shows  us  how  necessary  to  true  legal 
history  is  a  recital  of  the  prenatal  philosophy  and  the 
philosophy  of  the  creative  act  and  an  understanding  of 
the  psychology  of  legislative  and  judicial  lawmaking;  and 
in  a  number  of  instances,  and  in  an  illuminating  manner, 
he  shows  us  what  that  philosophy  and  psychology  were 
and  ever  will  be. 

Though  the  work  of  a  philosopher,  the  book  is  perhaps 
one  of  the  most  practical  of  those  which  have  been  writ- 
ten in  these  modern  times.  We  are  today,  in  America, 
in  the  midst  of  a  social  revolution ;  we  are  questioning  the 
very  foundations  of  government.  Should  we  or  should 
we  not  have  a  pure  democracy?  Can  there  be  a  pure 
democracy  and  real  progress?  Many  decry  the  following 
of  precedents ;  but  how  far  have  precedents  been  followed 
in  the  past,  and  what  is  their  value?  Is  the  legal  fiction 
a  thing  of  value  or  a  thing  to  be  discredited?  Wherein 
does  the  strength  of  the  demagogue  lie,  and  how  far  has 
the  advocate  affected  the  development  of  the  law?  These 
and  a  hundred  other  questions  are  answered  —  not  di- 
rectly, it  is  true,  for  the  author  is  only  undertaking  to  show 
that  the  historian  should  take  account  of  the  influence  of 
philosophy  and  of  the  philosophers,  —  but  to  the  thought- 
ful reader  they  are  answered  none  the  less. 

The  real  lawyer  and  statesman  desires  that  government 
by  law  shall  remain  among  us.  In  order  that  it  may  re- 
main, that  law  must  be  responsive  to  the  needs  of  the  age. 
It  must  satisfy  the  wants,  even  the  whims,  of  a  democracy, 
yet  it  must  be  fundamentally  sane  and,  above  all,  it  must 
be  stable  and  secure.  Though  additions  are  to  be  built,  the 
main  structure  must  be  preserved.  If  one  legislates  he 
should  know  what  now  is,  and  the  reason  of  that  which 
has  been  formulated  and  proclaimed:  he  should  know  not 
only  the  facts  which  brought  about  the  enactment  or  the 
proclamation,  but  the  philosophy  and  the  psychology 


INTRODUCTION  TO  THIS  VOLUME 

which  made  the  need  apparent  and  the  need  communi- 
cable. "We  are  neither  children  nor  gods,  but  men  in  a 
world  of  men."  What  have  men  deemed  to  be  necessary 
for  men?  What  has  induced  that  belief?  And  how  was 
the  belief  communicated?  Today,  how  can  we  make  an 
unthinking  democracy  think?  How  can  the  thinking 
few  dominate  legislation?  What  are  we  driving  at? 
What  is  the  real  domain  and  scope  of  the  law  ? 

All  these  questions  must  be  answered  and  must  be 
solved.  In  their  solution  Professor  de  Tourtoulon  has 
given  us  material  aid.  Supposedly,  the  author  is  merely 
giving  hints  to  the  historian.  In  fact,  and  as  he  himself 
asserts,  he  is  attempting  "to  trace  what  constitutes,  in 
my  opinion,  the  philosophic  principles  of  the  history  of  the 
law;  the  analysis  of  the  psychological  phenomena,  which 
taken  as  a  whole  constitute  law;  and  the  examination  of 
the  mechanism  which  causes  them  to  succeed  one  another 
and  be  combined  in  a  relatively  undetermined  manner 
that  can  and  should  be  studied  minutely  in  itself."  If 
today  we  would  legislate,  if  today  we  would  formulate 
and  preserve  a  judicial  system  and  a  law  that  shall  be 
adequate  to  our  needs,  we  must  undeterstand  these  things. 

It  is  not  the  province  of  this  introduction  to  review  the 
work  that  is  before  us.  In  these  days  of  an  attempt  at  a 
pure  democracy,  however,  few  will  doubt  the  value  of  the 
careful  study  of  suggestions  such  as  these : 

"The  privileged  few  can  express  what  they  think,  can 
make  their  speech  or  their  writings  understood,  and  trans- 
mit them  to  succeeding  generations  ..." 

"What  is  thought  in  the  group,  in  the  nation,  or  in 
humanity,  does  not  constitute  social  thought.  The  whole 
intellectual  labor  of  human  beings  does  not  become  syn- 
thesized, nor  does  it  create  law,  religion,  or  any  social 
phenomenon.  It  is  a  real  thing  which  cannot  be  per- 
ceived, a  sacred  thing  which  we  cannot  respect  since  we 
cannot  know  it.  On  the  contrary,  collective  thought 


xliv       INTRODUCTION  TO  THIS  VOLUME 

(that  of  groups)  is  easy  to  observe,  it  is  a  convenient  object 
of  study,  thanks  to  its  relative  meagreness.  In  fact,  it 
governs  the  world,  but  nothing  can  givs  it  a  right  to  do 
so  or  compel  us  to  accord  it  our  respect  and  esteem.  It 
is  a  concubine  that  cannot  be  driven  from  the  conjugal 
abode  .  .  ." 

"The  Durkheim  school  supposes  that  the  social  con- 
sciousness is  formed  by  mysterious  processes  in  a  political 
group,  or  in  some  definite  region,  whenever  assemblies, 
crowds,  or  writings  give  it  the  opportunity  to  reveal  itself. 
I  maintain,  on  the  other  hand,  that  every  event,  every 
institution  which  brings  many  brains  into  contact,  itself 
transforms  scattered  and  uncertain  fragments  of  individual 
psychology,  so  that  before  the  communication  of  ideas  has 
been  materially  affected  there  exists  nothing  specifically 
collective.  What  will  be  the  general  spirit  of  a  particu- 
lar assembly?  That  will  depend  upon  its  powers,  upon 
the  task  it  has  to  accomplish,  upon  the  way  in  which  the 
president  and  the  board  will  be  nominated,  upon  the  du- 
ration of  its  powers  and  upon  the  one  who  will  address  the 
house.  It  becomes  a  collective  being  by  contact,  and  be- 
fore the  first  contact,  it  does  not  exist  ..." 

"Every  time  that  men  meet  directly,  or  communicate 
by  writing,  there  is  an  exchange  of  ideas,  new  or  com- 
monplace, practical  or  visionary.  Among  these  exchange 
ideas,  some  are  common  to  all  or  appear  to  be  so.  The 
adherence  of  each  individual  to  these  ideas  communicates 
to  them  a  new  force,  and  they  return  to  the  brain  of  each 
no  longer  with  the  timidity  with  which  they  might  for- 
merly have  been  affected,  but  with  quite  peculiar  inten- 
sity. What  has  been  energetically  affirmed  and  has  not 
been  contradicted  appears  incontestable  .  .  .  ' 

"  If  we  try  to  imagine  the  first  act  of  social  repression, 
the  first  time  that  a  group  might  have  exercised  penal  jus- 
tice, before  the  first  contact  of  individual  brains,  there 
would  have  existed  nothing  collective  in  their  minds.  This 


INTRODUCTION  TO  THIS  VOLUME         xlv 

first  popular  tribunal  would  have  been  essentially  irreso- 
lute, open  to  every  fluctuation  of  sentiment,  and  might 
equally  as  well  acquit  the  criminal  as  tear  him  to  pieces,  by 
the  least  chance  incident.  After  this  first  decision,  this 
first  decision  of  collective  psychology,  the  memory  of  this 
former  phenomenon  would  remain  in  the  minds  of  the  peo- 
ple and  consequently  there  would  be  a  tendency  to  repeat 
it.  This  tendency  is  originally  of  small  moment,  but  it 
would  necessarily  assume  more  stability  through  repeti- 
tion .  .  .  Collective  psychology  establishes  itself  in 
tradition  and  in  judicial  decision  ..." 

"Great  orators  specialize  in  controlling  collective 
thought.  Demosthenes  and  Cicero  are  remarkable  in 
this  respect  ..."  (The  writer  might  add  to  this 
list  William  Jennings  Bryan,  Eugene  Debs,  and  A.  C 
Townley.) 

"The  isolated  man  to  whom  a  course  of  reasoning  is 
submitted  remains  in  doubt  if  he  does  not  find  the  reason- 
ing itself  the  means  of  justifying  his  belief.  But  if  he  be- 
comes part  of  a  crowd,  he  is  less  particular;  although  he 
may  not  understand  a  thing  very  well,  if  everybody  else 
has  an  air  of  understanding  it,  he  is  easily  convinced.  It 
may  thus  happen  that  nobody  in  the  crowd  fully  under- 
stands a  certain  question,  but  as  everyone  supposes  his 
neighbor  possesses  more  perspicacity  than  himself,  the 
approval  is  unanimous." 

Though  to  some  Pierre  de  Tourtoulon  may  appear  to  be 
a  professor  in  the  clouds,  and  philosophy  a  useless  ab- 
straction, to  the  writer  the  author  is  a  practical  politician, 
and  philosophy  is  a  live  and  up-to-date  science. 


AUTHOR'S  ORIGINAL  PREFACE 


The  work  which  is  now  completed  was  originally  con- 
ceived as  merely  a  preface  to  a  Manual  of  Legal  History. 
The  various  circumstances  which  for  a  long  time  pre- 
vented its  being  shaped  into  final  form  and  printed  have 
modified  to  a  considerable  extent  this  first  point  of  view. 
Thus  I  gave  up  the  idea  of  treating  in  this  work  —  reserv- 
ing that  for  later  volumes  —  questions  of  practical,  didac- 
tic or  pedagogical  interest.  This  would  have  been  out  of 
place  in  a  work  intended  to  be  purely  philosophical. 

The  r61e  of  legal  history  in  the  juridical  and  historical 
sciences  is  purely  a  matter  of  opportunism  and  does 
not  admit  of  being  clearly  determined.  Everything  that 
concerns  method  also  eludes  any  precise  rules.  Except 
for  certain  broad  principles  which  are  imposed  upon  all, 
method  is  a  personal  thing.  Just  as  the  objective  study 
of  methods  already  employed  is  of  profoundly  practical  in- 
terest, so  the  elaboration  of  the  method  which  should  be 
employed,  the  ideal  method,  is  entirely  visionary.  In 
no  case  have  these  two  matters  any  philosophical  char- 
acter. 

So  I  have  attempted  to  trace  what  constitutes,  in 
my  opinion,  the  philosophic  principles  of  the  history  of 
law:  the  analysis  of  the  psychological  phenomena  which, 
taken  as  a  whole,  constitute  law;  and  the  examination  of 
the  mechanism  which  causes  them  to  succeed  one  another 
and  be  combined  in  a  relatively  undetermined  manner 
that  can  and  should  be  studied  minutely  in  itself. 

This  work  is  only  an  outline;  its  chief  merit  being 
perhaps  that  it  emphasizes  the  complexity  of  a  problem 

xlvii 


xlviii        AUTHOR'S  ORIGINAL  PREFACE 

which  certain  writers  have  tried  to  solve  in  far  too  simple 
a  fashion. 

"In  brief,  the  principal  merit  of  the  book  consists  in 
its  maintenance  of  a  point  of  view  and  its  statement  of 
problems  that  at  first  sight  appear  to  have  no  relation  to 
the  History  of  Law,  —  an  opinion  that  is  reversed  by  the 
long  and  careful  critique  made  by  the  author." 

Thus  the  eminent  scholar,  Professor  D.  Gumersindo  de 
Azcarate  of  Madrid,  expresses  himself  in  a  letter-preface 
to  the  Spanish  translation  of  my  first  volume.  This 
great  thinker  and  brilliant  orator  did  me  the  very  great 
honor  of  criticizing  that  first  volume  and  of  bringing  to  it 
an  appreciation  of  which  I  have  reason  to  be  very 
proud : 

"And  it  is  not  that  I  agree  with  all  the  doctrines  of  the 
author,  as  you  see;  but  that  which  delights  me  in  his 
work  is  its  scientific  exactness,  its  originality,  its  erudi- 
tion, its  impartiality  that  is  above  any  spirit  of  sectarian- 
ism, and  its  undoubted  importance." 

I  dare  not  think  but  that  this  appreciation  is  far  too 
indulgent.  Of  these  eulogies  I  will  accept,  however,  that 
of  impartiality  free  from  all  sectarianism.  Sectarianism  is 
certainly  not  my  forte.  I  believe  that  I  am  almost  free 
from  any  preconceived  ideas.  Independence  of  mind, 
however,  even  in  one  who  desires  it  most  utterly,  is  per- 
haps never  more  than  relative. 

I  owe  the  heartiest  thanks  to  M.  Ramon  Carande,  the 
young  scholar  of  Madrid,  already  deeply  versed  in  the 
juridical  and  economic  sciences,  who  took  the  initiative 
in  the  Spanish  translation  and  conducted  it  to  a  speedy 
and  successful  conclusion. 

Professor  Wigmore  of  the  Northwestern  University  Law 
School  has  been  good  enough  to  offer  me,  in  the  name  of 
the  Committee  of  the  Association  of  American  Law  Schools, 
a  place  in  the  collection  of  English  translations  of  conti- 
nental works  upon  legal  philosophy.  This  is  an  honor 


AUTHOR'S  ORIGINAL  PREFACE          xlix 

which  it  would  be  difficult  for  me  to  refuse,  although  I 
may  cut  but  a  poor  figure  in  the  company  of  the  jurists 
who  have  thus  chosen  me,  arid  of  those  celebrities  who 
have  been  comprised  in  their  collection. 

It  would  be  difficult  to  express  in  mere  words  of 
thanks  all  my  feelings  of  gratitude  toward  those  who,  in 
addition  to  the  exceptional  honor  accorded  me,  have  pro- 
cured for  me  the  advantage  of  being  able  to  be  read  in 
the  two  most  widespread  languages  in  the  world. 

Renens,  near  Lausanne, 
November,  1918. 


AUTHOR'S   PREFACE  TO  THE 
AMERICAN   EDITION 


This  opportunity  to  write  a  special  preface  to  this  edi- 
tion, availed  of  at  the  suggestion  of  those  who  have  intro- 
duced my  book  to  Anglo-American  lawyers,  gives  me  a 
special  satisfaction. 

Nearly  a  year  has  elapsed  since  the  appearance  of  the 
French  edition,  a  year  in  which  intellectual  life  has  be- 
come somewhat  more  active,  the  post  more  accommo- 
dating, and  commerce  in  books  more  diligent.  In  conse- 
quence of  this,  I  have  been  able  to  read  and  stduy  a 
number  of  works,  some  of  which  were  published  in  the 
year  1919,  and  some  others  published  abroad  of  which  I 
had  only  imperfect  knowledge.  On  the  other  hand,  vari- 
ous scholars,  among  them  those  whom  I  highly  respect 
and  esteem,  have  read  my  book  and  made  me  acquainted 
with  their  views  either  in  letters  or  in  the  form  of  book 
reviews.  Putting  aside  eulogy  inspired  by  indulgence 
or  friendship,  these  expressions  of  opinion  have  given  me 
some  objective  indications  of  the  utility  of  my  efforts  and 
of  their  concordance,  in  the  main,  with  the  trends  fol- 
lowed by  others. 

But  I  have  not  yet  felt  the  need  of  making  any  modifi- 
cations of  great  importance  in  my  book ;  and  I  am  happy 
on  this  occasion  to  be  able  to  justify  my  efforts  by  analo- 
gous labors  of  very  eminent  thinkers,  and  to  turn  again 
to  a  body  of  ideas  involving  various  questions  of  juristic 
logic  which  seem  to  me  to  be  of  very  particular  impor- 
tance. For  the  rest,  I  defer  my  remarks  on  the  detail  of 
these  matters  to  an  appendix  to  this  American  edition  of 
my  book.  • 

li 


Hi      AUTHOR'S  PREFACE,  AMERICAN  EDITION 

Ought  I  to  make  excuses  for  the  book  itself,  in  that  its 
themes  may  be  thought  to  be  too  detached  from  the  pre- 
occupations of  the  present  hour?  "  Primum  vivere,  deinde 
philosophari "  runs  a  proverb  of  good  sense,  which  never- 
theless may  involve  a  great  error  of  history  and  of  psy- 
chology. What  becomes  of  philosophy  if  man  does  not 
have  it  except  in  the  hours  of  calm  and  tranquillity? 
What  of  human  reason  if  it  can  not  exist  as  well  in  a 
time  of  material  anxiety  as  in  a  world  of  abstract  thought  ? 
Man  has  always  philosophized,  and  he  will  speculate  on 
the  uncertainties  of  the  future.  However,  it  is  our  hope 
that  the  future  will  be  one  in  which  the  beneficent  influ- 
ence of  the  United  States  of  America  will  bring  moral 
and  intellectual  good  to  all. 

PIERRE  DE  TOURTOULON. 

Renens,  near  Lausanne,  26  January  1919. 


PHILOSOPHY  IN  THE 
DEVELOPMENT  OF  LAW 


INTRODUCTORY  CHAPTER 

OBJECT  AND  SCOPE  OF  THIS  WORK 

As  a  rule,  treatises  on  the  history  of  law  devote  a  part 
of  their  introductions  to  pointing  out  the  philosophical 
and  practical  aspects  of  this  science,  its  characteristics,  its 
methods  and  the  place  it  should  occupy  in  the  field  of 
human  knowledge.  But  such  information  is  nearly  al- 
ways superficial  and  devoid  of  originality.  The  historian 
is  in  haste  to  do  historical  work;  to  ask  that  he  reflect 
upon  the  usefulness  of  his  work  is  as  little  to  the  point  as 
to  question  a  passer-by  on  the  street  upon  the  raison 
d'etre  of  his  existence.  Let  us  allow  the  latter  to  go  to 
his  business,  the  former  to  his  documents. 

The  opposite  fault  will  be  found  in  this  volume.  A 
great  many  theories,  a  few  facts,  and  some  persons  will, 
no  doubt,  ask  whether  it  is  necessary  to  discuss  so 
much,  before  undertaking  a  Juristic  History  of  Modern 
Europe. 

When  first  I  began  teaching  at  Lausanne,  I  was  struck 
by  the  profoundly  philosophical  character  which  my  prede- 
cessor, M.  Brocher  de  la  Flechere,  was  able  to  give  to  his 
course  in  the  history  of  law.  Few  minds  have  dwelt  at 
such  length  upon  the  principles  of  our  science,  and  upon 
its  scientific,  didactic,  and  practical  importance.  I  do 
not  wish  by  any  means  to  screen  myself  behind  his  au- 
thority, for  it  may  be  that  I  have  met  with  but  poor  suc- 
cess in  those  provinces  familiar  to  him.  I  may  say,  how- 
ever, that  if  I  had  not  known  him,  my  brief  preface  to  a 
manual  of  legal  history  would  never  have  developed  into 
the  present  volume. 

If  the  history  of  law  is  merely  an  instrument  in  the 
hands  of  some  other  science,  such  as  sociology,  psychol- 

lv 


Ivi  INTRODUCTORY   CHAPTER 

ogy,  general  history,  or  philosophy  of  history,  I  confess 
myself  wrong  in  quitting  my  own  trade  and  daring 
to  undertake  that  of  another;  but  if  it  is  an  individual 
and  independent  science,  everything  that  pertains  to  it, 
pertains  to  us.  It  seems  to  me  that  we  cannot  merely 
hand  on  our  materials  to  others  for  them  to  make  the 
philosophical  deductions,  since  the  method  of  research 
should  be  determined  by  what  we  wish  to  discover,  and 
to  follow  the  texts  without  aim  or  method  would  not, 
perhaps,  accomplish  any  great  object. 

Philosophy  may  hope  to  learn  from  our  science  the  at- 
titude of  history  in  relation  to  law,  and  that  of  law  in 
relation  to  history.  We  can  gain  a  more  definite  idea  of 
the  nature  of  law  by  studying  it  through  the  ages.  We 
shall  discover  just  what  degree  of  stability  it  is  possible 
for  juristic  conceptions  to  attain;  what  forces  tend  to 
transform  them  and  how  the  transformations  are  ef- 
fected. The  nature  of  every  abstract  or  concrete  thing  re- 
veals itself  to  him  who  observes  its  movements,  to  him 
who  can  determine  the  degree  to  which  these  movements 
are  of  its  own  initiative  or  are  produced  by  outside  forces. 
On  the  other  hand,  by  tracing  back  to  their  rudimentary 
state  the  elements  of  the  complex  laws  of  civilized  peoples, 
we  shall  be  better  prepared  to  analyze  them  and  place  an 
estimate  upon  their  value.  Such  must  be  our  first  task,  a 
contribution  to  the  philosophy  of  law,  that  is,  to  general 
philosophy. 

Reciprocally,  the  study  of  the  transformations  of  the 
law  ought  to  clarify  the  philosophy  of  history.  Without 
doubt,  the  history  of  every  science  and  every  art  is 
equally  necessary  to  explain  the  development  of  the 
human  mind  and  of  civilization.  The  historians  of 
mathematics,  of  physics,  of  medicine,  and  of  painting, 
contribute  to  the  reconstruction  of  the  life  of  the  past, 
and  to  the  understanding  of  the  course  of  human  thought 
and  human  society.  But  we  should  be  greatly  deceived 


INTRODUCTORY  CHAPTER  Ivii 

if  we  considered  universal  history  as  the  sum  of  the  his- 
tories of  particular  subjects.  Each  of  these  possesses  dis- 
tinct peculiarities,  and  a  power  of  explanation  more  or 
less  profound  or  extensive.  One  will  be  of  value  on  ac- 
count of  its  objectivity,  another,  as  the  history  of  phi- 
losophy, because  of  the  importance  of  its  ideas.  What 
has  law,  theoretical  and  practical,  done  for  humanity? 
What  part  of  the  thought  of  a  people  do  its  institutions 
represent  to  us?  Is  law  active  or  passive  in  its  evolu- 
tion? Does  it  permit  itself  to  be  modified  by  different 
causes,  or  does  it  act  as  a  cause  itself?  What  is  the  force 
of  that  action?  The  historian  and  not  the  jurist  is  directly 
interested  in  such  questions. 

We  shall  pursue  them,  moreover,  a  long  time  without 
solving  them  definitively,  for  if  they  were  solved,  the 
historian-jurist  would  no  longer  have  a  philosophical  task ; 
his  work  would  become  purely  descriptive  and  he  would 
find  himself  excluded  from  the  realm  of  general  science. 
We  have  stated  them,  in  a  very  imperfect  fashion  to  be 
sure,  in  order  to  show  that  there  exists  a  science  of  the 
history  of  law  which  springs  from  the  study  of  documents 
and  from  the  interpretation  of  institutions  of  the  past, 
and  has  for  its  purpose  not  simply  the  substantiation  of 
certain  facts,  but  the  attainment  of  some  portion  of  gen- 
eral and  abstract  scientific  truth. 

We  are  not  going,  as  some  do,  to  ask  our  principles 
from  some  other  science.  But  we  shall  ask  the  aid  of 
many  other  sciences  —  biology,  psychology,  sociology;  at 
the  same  time,  however,  taking  care  to  borrow  from  each 
only  what  is  strictly  useful  to  us,  always  keeping  in  mind 
the  special  point  of  view  of  the  history  of  law,  and  avoid- 
ing every  discussion  which  does  not  bear  directly  upon 
that  subject.  We  shall  endeavor  to  make  clear  the  essen- 
tially analytical  character  of  our  work,  a  work  which  has 
been  careful  at  all  times  to  separate  our  branch  of  the 
study  from  all  those  which  flourish  beside  it,  and  not  to 


Iviii  INTRODUCTORY  CHAPTER 

merge  it  in  them.  It  has  not,  however,  been  our  object, 
by  any  means,  to  prepare  or  to  facilitate  a  synthesis  of 
the  social  sciences.  Quite  the  contrary.  The  scientific 
r61e  of  legal  history  must  not  make  us  neglect  its  practi- 
cal role.  One  may  be  a  great  painter,  an  excellent  physi- 
cian or  a  learned  mathematician,  and  yet  be  completely 
ignorant  of  the  history  of  mathematics,  of  medicine  or  of 
painting.  Is  it  equally  allowable  for  the  legislator  and  the 
lawyer  to  be  ignorant  of  the  history  of  law?  In  other 
words,  is  history  an  essential  element  of  legislative  and 
juristic  work? 

Whenever  a  problem  of  a  desirable  law  is  discussed, 
two  opposing  tendencies  nearly  always  present  them- 
selves, that  of  the  rationalists  and  that  of  the  tradition- 
alists. The  former  search  for  a  rule  of  conduct  in  reason, 
in  logic,  in  the  "a  priori ";  a  certain  provision  of  the  law  ap- 
pears to  them  useless  or  ridiculous,  and  they  demand  its 
suppression.  They  are  quite  certain  that  nothing  more 
than  a  little  reflection  is  needed  to  discover  the  good  and 
the  evil.  Their  efforts  towards  reaching  the  political 
conscience  are  praiseworthy;  but  they  are  so  fruitless,  so 
superficial,  so  artificial,  that  passions  and  interests  sport 
with  their  theories  as  with  bits  of  straw;  and  the  result  is 
that  although  they  desire  that  reason  should  displace  ar- 
bitrary provisions,  reason  is,  in  the  end,  displaced  by 
arbitrariness. 

The  traditionalist  is  more  prudent;  it  is  his  principle 
not  to  deviate  from  his  habits,  but  to  adhere  to  what  he 
has  seen  work.  He  will  not  commit  the  grave  faults  of 
his  adversary.  There  will  always  be  in  the  traditional- 
ist's solution  a  certain  equilibrium  of  reason,  interest  and 
sentiment.  But  he  would  condemn  the  law  to  absolute 
immobility.  Furthermore,  his  intellectual  attitude  is  too 
passive.  From  the  day  when  man  reasoned  about  his  in- 
stitutions, even  though  the  reasoning  was  childish,  a 
change  was  effected.  In  spite  of  its  errors,  rationalism  is, 


INTRODUCTORY  CHAPTER  lix 

perhaps,  only  a  passing  evil;  let  us  hope  that  it  will  be- 
come an  ultimate  good. 

It  is  not  difficult  to  see  that  history,  the  experience  of 
the  past,  reconciles  these  two  theories  and  will  certainly 
become  the  only  method  of  the  future.  But  do  we  actu- 
ally know  enough  history  to  evolve  from  it  a  certain  leg- 
islative method?  Frankly,  no.  Materials  are  not  lack- 
ing; but  the  means  of  availing  ourselves  of  them  are  en- 
tirely inadequate.  The  history  of  law  cannot  assume  the 
responsibility  of  furnishing  ready-made  solutions  to  the 
law  maker.  It  can  only  claim,  among  several  legislative 
methods  equally  defective,  to  take  its  place  with  the 
same  right  as  the  others. 

And  what  has  the  interpreter  of  the  laws,  the  lawyer, 
to  do  with  the  history  of  the  law?  That  depends.  The 
law,  in  so  far  as  it  is  a  science  interpretative  of  laws  or 
statutes,  is  essentially  of  little  stability.  One  can  scarcely 
give  it  a  thorough  definition  which  would  be  applicable  in 
every  age  and  environment. 

In  lower  societies,  law  is  a  preservative  instinct  of  the 
individual  and  of  the  race;  its  application  is  unconscious. 
For  others  of  a  higher  order,  belief  in  the  value  of  cus- 
toms is  religious,  and  their  observation  is  assured  through 
the  medium  of  authority.  Thus  is  awakened  the  moral 
appreciation  of  the  law  and  the  idea  of  employing  it  to 
repress  vice  and  develop  virtue. 

Finally,  higher  civilizations  arrive  at  a  juristic  con- 
sciousness. The  interpreter  of  laws  equalizes  interests  by 
a  special  technic  which  is  independent  of  common  sense 
and  of  public  morality  and  is  able  to  bring  about  differ- 
ent results.  Such  procedure  may  end  in  assuming  an  al- 
most mathematical  rigidity.  Ancient  Roman  civilization 
contributed  much  to  form  this  juridical  mind  among 
modern  European  peoples.  The  latter  are  apparently  not 
quite  satisfied  with  it,  and  the  indefiniteness  of  the  idea 
of  law  is  strikingly  illustrated  at  the  present  time.  To 


Ix  INTRODUCTORY  CHAPTER 

the  detriment  of  those  who  wish  to  preserve  intact  the 
formal  Roman  law,  there  is  daily  gaining  ground  a  school 
which  substitutes  for  it  moral  interpretation,  or  the  sen- 
timent of  solidarity;  confidence  in  progress  replaces  the 
cold  deduction  of  our  ancient  jurisprudence.  These  hu- 
manitarian tendencies  must  not  be  confounded  with 
equally  recent  efforts  to  consider  the  law  from  an  objec- 
tive and  positive  point  of  view,  by  relying  on  all  the  data 
of  science  that  are  certain  and  available.  This  new 
school,  which  is  moreover  still  in  its  infancy,  might  be 
called  philosophical  in  that  it  tends  to  reconcile  the  solu- 
tions of  practice  with  the  positive  realities  contained  in 
legal  formulas. 

History  of  the  law  is  far  from  having  the  same  impor- 
tance for  the  three  schools.  For  the  first  two,  it  is  not 
superfluous,  but  it  is  only  accessory.  One  may  deal  with 
the  technic  of  the  law  with  the  greatest  finesse,  the  most 
inflexible  precision,  and  yet  ignore  the  first  elements  of  its 
history.  It  is  possible,  though  with  more  difficulty,  to 
evolve  some  happy  and  even  opportune  ideas  for  the  in- 
terpretation of  laws  while  despising  our  science  alto- 
gether. On  the  other  hand,  the  philosopher-jurist  bases 
his  method  upon  historical  observation  and  without  it  he 
could  do  nothing.  The  law,  then,  has  not  that  absolute 
immobility  which  the  mathematician  demands  in  order  to 
establish  sound  deductions,  nor  that  relative  immobility 
necessary  to  the  neotheologian  to  present  his  opinions  as 
a  product  of  the  universal  conscience.  For  the  philoso- 
pher the  law  is  what  it  is,  —  something  mobile  and  rela- 
tive, whose  present  can  be  explained  only  by  its  past,  — 
something  which  endures  continually,  in  each  of  its  pre- 
cepts, the  attacks  of  different  interests,  and  opposes  to 
them  a  force  of  resistance  that  is  not  always  the  same  and 
which  it  would  be  dangerous  in  practice  to  consider  as 
absolute. 

From  a  theoretical  and  a  practical  point  of  view,  let  us 


INTRODUCTORY  CHAPTER  Ixi 

investigate  first  of  all  for  what  reason,  by  what  means, 
and  in  what  way  law  is  modified  by  time.  We  shall  then 
be  able  to  state  more  precisely  what  the  study  of  these 
changes  can  contribute  to  legal  and  historical  science, 
that  is  to  say,  what  is  the  role  of  the  history  of  law. 
Finally,  in  a  third  part,  we  shall  try  to  establish  a  method 
that  is  in  conformity  with  this  role  and  that  presents 
sufficient  guarantee  of  scientific  accuracy 


PHILOSOPHY  IN 
THE   DEVELOPMENT  OF   LAW 

PART  I 
CHANGES   IN   THE  LAW 


INTRODUCTION 

§  1.  The  Three  Schools  of  Thought  as  to  Changes  in  the 
Law.  The  incessant  modifications  of  the  law  form  the  sub- 
ject matter  of  legal  history.  But  those  who  ascertain  and 
study  the  perpetual  movement  of  institutions,  find  them- 
selves, according  to  their  temperaments  or  their  observa- 
tions, in  very  different  states  of  mind.  Consciously  or 
unconsciously,  they  have  themselves  created  some  kind 
of  philosophy  in  regard  to  historical  development.  In 
fact,  each  historian  has  his  own.  But  the  various  systems 
may  be  classified  in  three  great  schools. 

(1)  For  some,  there  is  no  connection  between  the  moral 
and  the   physical   sciences.    The   former   have   a   high 
destiny   and   escape   universal   causality.     That   which 
makes  humanity  advance  in  the  path  of  civilization  and 
progress,  is  not  the  combination  of  small  circumstances 
which  surround  it,  but  the  rdle  which  has  been  assigned 
to  it,  or  which  it  assigns  to  itself,  the  end  which  should 
crown  the  work.    There  are  some  mystics  and  some  prac- 
tical men  (positifs)  in  this  school.    The  former  believe  in 
the  interposition  of  a  metaphysical  will  which  is  superior 
to  man  and  has  marked  out  his  course  for  him:  the  lat- 
ter only  pre-suppose  the  existence  of  the  human  will,  but 
they  do  not  think  that  a  reasonable  being  capable  of 
choosing  an  aim  and  of  directing  himself  toward  it,  is 
subjected  to  the  rigorous  mechanism  which  directs  inani- 
mate objects.    They  are  all  teleologists  in  the  sense  that 
attraction  towards  a  given  end  is  for  them  the  true  ex- 
planation of  human  acts  and  human  institutions. 

(2)  Diametrically  opposed  are  the  theories  of  the  de- 
terminist.     To  him  the  human  will  seems  an  illusion,  a 
product  of  irrelevant  causes,  without  action  and  without 

3 


4  INTRODUCTION 

influence.  Our  institutions  are  determined  by  permanent 
forces  which  draw  us  into  inevitable  paths.  But  what 
characterizes  this  school  more  particularly  is  the  belief 
in  laws  of  history.  By  retracing  the  course  of  the  legal 
progress  of  the  past,  we  might,  they  believe,  render  ap- 
parent the  direction  that  the  human  intellect  has  of  ne- 
cessity followed  and  must  of  necessity  follow  in  the  future. 
They  go  so  far  as  to  assert  that  the  research  into  laws  is 
the  only  scientific  task  of  history.  A  great  many  and  in- 
herently different  laws  have  been  discovered:  biologic 
laws  of  selection  and  association,  the  anthropologic  law 
of  the  mixture  of  races,  the  psychologic  law  of  imitation, 
the  economic  law  of  interest,  and  the  political  law  of  pro- 
gressive centralization.  Our  modern  systems  are  not 
lacking  in  these  guiding  threads  by  whose  aid  universal 
history  may  without  difficulty  be  unravelled. 

(3)  Finally,  I  shall  call  the  causalist  school  that  which 
confines  itself  to  studying  the  cause  of  each  institution 
without  believing  in  the  possibility  of  evolving  its  laws. 
The  factors  which  contribute  to  the  establishment  of  the 
Law  are  innumerable,  and  it  is  impossible  to  treat  some  as 
essential  and  others  as  accidental.  The  Law  originates 
and  is  modified  under  physical,  biological,  economic,  psy- 
chological, and  juristic  influences.  The  co-existence  of 
these  forces  proves  that  no  single  one  of  them  can  be  the 
sole  guide  of  history;  no  single  one  can  acquire  the  fixed 
and  determined  character  which  would  permit  it  to  as- 
sume the  title  of  a  law  of  nature. 

We  have  adopted  these  last  views.  The  following  chap- 
ters explain  why. 


BOOK  I 
TELEOLOGY  IN  THE  HISTQRY  OF  LAW 

Are  human  institutions  willed  in  their  creation  or  in 
their  modifications?  Are  they  willed  by  man,  or  by  a 
force  superior  to  humanity,  by  God? 

These  two  questions  do  not  appear,  at  first  sight,  diffi- 
cult to  solve.  What  are  laws  if  not  the  product  of  the 
human  will?  As  to  the  intervention  of  the  divine  will, 
one  is  free  to  believe  it  by  an  act  of  religious  faith.  But 
it  cannot  be  considered  in  a  scientific  work. 

Nevertheless,  neither  of  these  two  questions  is  as  sim- 
ple as  it  seems.  In  fact,  it  must  be  observed  in  regard  to 
the  first  that  we  need  not  ask  ourselves  whether  the  law 
is  the  product  of  the  human  will;  but  whether  man 
when  he  created  his  institutions,  foresaw  their  functions, 
whether  he  adapted  them  to  the  purpose  that  he  intended, 
and  whether  he  knew  before  he  made  them  what 
their  role  would  be.  Now,  we  shall  have  occasion  to 
show  that  man  foresees  the  results  of  his  acts  to  only  the 
most  limited  extent.  He  no  doubt  assigns  imagined 
functions  to  the  law  which  he  frames.  But  as  to  the  true 
functions,  how  can  he  know  them  beforehand  when  he 
does  not  recognize  them  afterwards?  Man  has  only  a 
very  vague  idea  of  the  advantages  and  disadvantages  of 
institutions  which  he  sees  performing  their  functions  be- 
fore his  very  eyes.  Is  it  credible  that  he  understood 
them  before  they  were  adopted  ? 

As  to  the  second  question,  which  we  shall  call  that  of 
metaphysical  teleogism,  we  have  willingly  given  it  the 
form  where  its  theological  character  is  most  apparent. 

5 


6  TELEOLOGIC  VIEW 

But  it  is  easy  to  disguise  behind  words  what  the  mate- 
rialist and  even  the  positivist  is  accustomed  to  respect; 
and  to  do  this  without  changing  its  meaning. 

Instead  of  God,  let  us  say  Nature.  Let  us  speak  of 
that  force  which  all  living  matter  shares,  and  attribute  to 
the  material  atom  a  virtue  of  initiative  which  resembles, 
more  or  less,  a  soul.  It  will  possibly  appear  then,  to  cer- 
tain minds,  more  scientific  to  ask  whether  this  tendency 
to  produce  life  is  not  the  directing  force  of  institutions, 
and  if  it  is  not  that  to  which  we  should  confide  our  des- 
tiny. By  these  changes  of  words  have  we  departed  from 
theology?  Have  we  entered  science?  That  is  what  we 
mean  to  investigate. 


CHAPTER  I 
METAPHYSICAL  TELEOLOGY 

•  §1.  INTRODUCTION.— §2.  THE  FINAL  CAUSE  IN  BIOLOGY.— 
§3.  TELEOGISM  IN  PSYCHOLOGY.  — §4.  TELEOGISM  AND  MORAL- 
ITY.—§5.  TELEOGISM  IN  LAW  AND  IN  POLITICS.— §  6.  TELEOGISM 
IN  HISTORY.— §7.  TELEOGISM  AND  LEGAL  DEVELOPMENT.— §  8. 
CONCLUSION 

§  1.  Aims  and  Forces.  Teleology  is  all  the  more 
dangerous  in  that  it  is  less  a  philosophical  theory  than  a 
natural  tendency  of  the  human  mind.  We  pass  in  and  out 
of  this  doctrine  unconsciously;  we  are  all  the  more  en- 
slaved by  it  when  we  believe  ourselves  free  from  it. 
Those  who  condemn  it  do  not  always  understand  very 
clearly  why,  and  for  what  precise  reason  it  is  irreconcil- 
able with  positive  science. 

The  old  theology,  in  its  interpretation  of  Nature,  ex- 
hibited an  especially  vicious  teleology.  Man  was  the  cen- 
ter of  creation;  everything  had  been  made,  by  God,  to 
be  useful  to  man.  And  that  God,  the  creating  and  di- 
recting force  of  the  universe,  was  conceived  in  the  image 
of  human  psychology.  A  will  gauged  by  our  will  was 
attributed  to  Him  with  plans  analogous  to  those  we 
form,  with  a  foresight  and  action  similar  to  the  foresight 
and  action  of  man.  Anthropocentrism  and  anthropo- 
morphism were  the  two  faults  of  the  old  teleology,  and 
contributed  much  toward  bringing  it  into  disrepute. 

But  these  are  only  minor  defects.  One  reason  alone  — 
the  same  for  all  the  sciences  —  makes  us  discard  these 
theories.  The  idea  of  an  "end,"  and  "aim,"  involves  the 
further  idea  of  a  consciousness  capable  of  foreseeing  the 
results  of  an  act.  Now,  whatever  its  nature,  it  must  al- 

7 


8  METAPHYSICAL  TELEOLOGY        [Cn.  I 

ways  remain  inaccessible  to  our  investigation.  That  this 
consciousness  may  be  very  different  from  ours  does  not 
render  its  existence  any  more  probable  nor  the  under- 
standing of  its  qualities  any  easier. 

But  it  is  worth  while  to  analyze  this  reason  more  in 
detail.  To  point  out  the  utility  or  the  function  of  a 
creature,  an  organ,  a  sentiment  or  an  institution,  is  not 
to  adhere  to  teleology.  To  say  that  the  nose  serves  to 
carry  spectacles,  or  that  it  is  useful,  or  indispensable  or 
marvelously  adapted  to  such  usage,  is  not  at  all  unrea- 
sonable. Furthermore,  to  attribute  to  living  beings  an 
initiative  force  whose  effects  science  may  observe,  to  be- 
lieve that  this  inner  force  determines,  to  a  greater  or  less 
extent,  the  development  of  that  being,  and  to  make  life 
and  thought  participants  in  universal  causality  —  there  is 
nothing  more  legitimate  than  this.  But  what  is  abso- 
lutely inadmissible  is  to  bind  these  two  ideas  together,  to 
attribute  to  life  the  power  of  governing  functions,  of  hav- 
ing purposes  and  aims  and  of  knowing  what  is  of  use  to 
it  and  seeking  it.  "A  force  capable  of  having  an  aim," 
whether  the  force  is  higher  than  nature  or  diffused 
through  it,  is  the  idea  upon  which  we  are  prohibited  from 
basing  any  theory.  Otherwise  our  work  would  be  theo- 
logical and  not  scientific. 

These  principles  are  common  to  every  science;  tele- 
ology does  not,  however,  present  the  same  dangers  to 
each. 

§  2.  Final  Cause  in  Biology.  Biology  studies  living 
organisms  and  the  working  of  these  organisms.  It  is  not 
satisfied  with  giving  a  description  of  bodies  and  of  their 
workings;  it  tries  to  understand  what  is  the  purpose  of  a 
particular  organ  or  tissue.  Sometimes  the  function  is  as 
obvious  as  the  organ  itself  and  there  is  little  to  do  to  dis- 
cover it;  on  the  other  hand,  sometimes  organs  present 
themselves  which  are  of  no  apparent  use.  But  the  biol- 
ogist is  so  trained  by  experience  to  find  a  perfect  or 


§2]  FINAL  CAUSE   IN   BIOLOGY  9 

nearly  perfect  adaptation  between  the  organ  and  its 
function,  that  he  does  not  feel  fully  satisfied  until  he  has 
assigned  a  role,  an  aim,  almost  an  "end"  to  every  ele- 
ment of  living  matter.  Everything  takes  place  in  the 
world  which  he  observes  "as  if  nature  had  willed  to 
adapt  each  organ  to  a  particular  function." 

Teleology  is  very  common  in  practical  biology,  and 
especially  so  since  mechanical  causation  is  very  obscure. 
How  has  harmony  between  the  structure  of  living  beings 
and  the,1  conditions  of  existence  been  established?  By 
selection,  by  heredity,  by  adaptation?  None  of  these  hy- 
potheses, whatever  degree  of  truth  it  may  contain,  gives 
the  mind  a  complete  and  satisfactory  explanation  of  our 
modes  of  development.  Selection  explains  how  beings 
wrongly  organized  disappear;  heredity,  how  improve- 
ments are  handed  down  through  time;  adaptation  alone 
views  the  creation  and  progress  of  organs  as  dependent 
upon  the  changes  in  the  environment  of  the  living  beings. 

No  doubt  the  idea  of  adaptation  may  be  purely  me- 
chanical. It  is  supposable  that  beings  have  been  sub- 
jected passively  to  outside  influences,  that  they  have  be- 
come weaker  in  sterile  and  stronger  in  fertile  lands ;  dark 
under  tropical  suns  and  pale  in  cold  climates.  But  the 
great  transformations  in  the  physical  constitution  of  liv- 
ing beings  remain  inexplicable  by  the  simple  and  direct 
influence  of  environment.  It  is  necessary  for  the  living 
being  to  contribute  something  of  himself,  to  labor  on  his 
own  initiative,  to  bring  himself  into  harmony  with  the 
new  conditions  of  existence,  to  strive  to  become  adapted. 
Then  this  adaptation  presents  to  us  all  the  elements  of  a 
final  cause,  a  force  tending  towards  a  precise  aim  and 
employing  means  suitable  to  attain  it. 

Likewise,  in  spite  of  the  wonderful  efforts  of  the  posi- 
tive and  materialistic  English  mind,  the  question  of  tele- 
ology in  biology  presents  itself  under  almost  the  same  as- 
pects as  it  formerly  did.  Bacon  stated  all  that  can  be 


10  METAPHYSICAL   TELEOLOGY         [CH.  I 

said  against  it,  and  Aristotle,  with  whom  Schopenhauer 
is  very  legitimately  allied,  all  that  could  be  said  in  its 
favor.  It  remains  logically  inadmissible  in  positive  sci- 
ence; but  it  preserves  a  practical  and  metaphysical  value 
which  is  beyond  question. 

In  biology,  teleology  presents  little  danger,  because  the 
mechanical  explanation,  whenever  it  can  be  reached,  is 
always  given  preference.  A  superficial  mechanism  is  to 
be  guarded  against. 

§  3.  Teleology  in  Psychology.  The  first  elements  of  ani- 
mal psychology  seem  formed  according  to  a  providential 
plan.  The  primitive  sensations  are  precisely  the  only 
ones  which  could  guide  the  living  being  in  his  earlier 
stages,  allow  him  to  choose  the  useful  and  shun  the  harm- 
ful at  a  time  when  his  intelligence  was  too  rudimentary 
to  understand  the  meaning  of  useful  or  harmful.  Such 
appears  to  have  been  the  original  role  of  pleasure  and 
pain.  Theologians,  positivists  and  materialists  agree  on 
this  point:  life  upon  the  earth  could  not  have  developed 
if  the  first  living  beings  had  not  been  guided  by  their 
very  sensations  toward  the  useful. 

Pleasure  and  pain  have  been  useful,  indeed,  indispen- 
sable. They  are  always  so.  They  have  a  " raison  d'etre," 
an  end,  which  is  our  existence,  and  this  end  is  their  com- 
plete justification.  Who  will  complain  of  the  capacity  to 
suffer  when  he  knows  that  without  pain  the  animal  or- 
ganism would  be  quickly  destroyed?  Who  will  not  ex- 
cuse pleasure  if  it  is  a  means  of  preserving  and  perfecting 
life? 

Teleology  of  pleasure  and  pain  is  based  upon  this  ob- 
servation ;  everything  which  is  of  a  nature  to  injure  our 
bodies,  or  to  hinder  our  organs  in  the  performance  of 
their  normal  functions  causes  an  unpleasant  impression, 
suffering;  an  agreeable  sensation  is,  on  the  contrary,  an 
indication  of  well  being.  If  our  sensations  were  particu- 
larly pleasurable  originally,  the  animal  could  but  aban- 


§3]  TELEOLOGY    IN    PSYCHOLOGY          11 

don  himself  to  them  without  resistance.  For  the  con- 
scious being  sensations  are  instructive,  being  sufficient  to 
direct  but  not  to  decide  his  course. 

But  how  do  pleasure  and  pain  instruct  us?  Pain  indi- 
cates some  havoc  already  accomplished.  When  the  sen- 
sation is  felt,  the  danger  is  no  longer  to  be  avoided.  The 
shock  has  already  taken  place;  the  body  is  injured  and 
the  animal  can  no  longer  save  himself  from  the  first  in- 
jury. He  is  simply  warned  that  if  he  persists  in  the  same 
course,  if  he  does  not  execute  a  movement  of  recoil,  he 
will  have  to  endure  further  suffering  and  further  deterio- 
ration. This  warning  will  more  often  be  true  than  false, 
but  not  necessarily  so.  It  is  possible,  on  the  other  hand, 
to  find  pleasure  in  persisting  in  the  harmful  act  and, 
more  often  still,  harm  in  continuing  in  the  pleasurable. 

There  is  not  therefore  a  direct  purposiveness ;  pain  does 
not  make  us  shun  the  harm  which  corresponds  to  it,  but 
the  harm  which  might  correspond  to  it.  But  in  what  in- 
stances and  to  whose  advantage  does  this  indirect  pur- 
posiveness act?  This  accord  between  the  useful  and  the 
agreeable  is  especially  evident  among  the  lower  animals. 
It  is  likewise  true  in  regard  to  the  organs  or  a  part  of  the 
organs  of  higher  animals.  The  one  which  is  in  pain  is 
threatened  in  its  existence  or  in  its  functioning.  In  the 
higher  animal  kingdom,  the  individual  is  no  longer  pro- 
tected by  teleology;  pain  in  one  organ  may  be  useful  to 
protect  another  and  more  important  organ;  pleasure  pre- 
supposes a  greater  activity  of  one  part  of  the  body,  but 
may  destroy  the  general  harmony  of  the  whole  being  and 
ruin  it  to  a  greater  or  less  extent.  Although  our  senses 
are  often  associated,  for  example,  when  a  pleasant  odor 
stimulates  the  appetite,  as  a  general  thing,  we  profit  by 
the  purposiveness  of  pleasure  and  pain  only  in  regard  to 
each  of  our  organs  independently. 

In  the  moral  world,  the  utilitarian  role  of  agreeable  or 
disagreeable  emotions  is  not  the  same.  They  are  power- 


12  METAPHYSICAL   TELEOLOGY          [Cn.  I 

less  to  constitute  an  experience  which  we  should  seek  or 
avoid.  Grief  at  losing  those  who  are  dear  to  us  does  not 
prevent  us  from  loving  others  through  fear  of  future 
grief.  Pleasure  does  not  increase  nor  pain  diminish  our 
sentimental  being.  If  we  are  to  believe  philosophers  and 
poets,  who  do  not  seem  to  have  been  poor  observers  in 
this  matter,  quite  the  contrary  is  the  case.  "L'homme 
est  un  apprenti,  la  douleur  est  son  maitre."  It  would  be 
easy  to  find  in  ancient  and  modern  literature  innumerable 
counterparts  to  this  verse  of  De  Musset's. 

In  human  life,  physical  or  moral,  pleasure  and  pain  no 
longer  indicate  what  must  be  sought  and  what  shunned. 

Now  this  purposiveness,  for  which  even  a  slightly  com- 
plex animal  already  seems  too  large  a  domain,  and  which 
declares  itself  powerless  to  aid  the  individual,  may  work 
toward  far  more  distant  ends  in  the  development  of  the 
race  and  of  civilization.  The  function  of  pleasure  is  to 
deceive  man,  to  cause  him  to  disregard  his  own  destiny 
and  make  him  sacrifice  his  life  for  the  benefit  of  others. 
Sexual  enjoyment  is  the  clearest  example  of  this;  but  our 
moral  pleasures  which  very  often  serve  social  ends,  are, 
snares  which  end  by  absorbing  our  lives  for  the  benefit 
of  the  collectivity.  Avarice,  vanity  and  ambition  de- 
mand great  sacrifices  in  exchange  for  fleeting  joys;  the 
"bon  vivant,"  who  above  all  others  is  certain  that  he 
lives  for  himself  alone,  in  reality  sacrifices  himself  to  ex- 
perimenting in  the  future  luxury  and  comfort  of  his  fel- 
lowmen. 

From  all  of  which  we  draw  the  conclusion  that  pleas- 
ure, desire,  suffering  and  aversion  serve  not  one  purpose, 
but  many.  A  physical,  moral  or  social  end  can  be  as- 
signed to  them;  but  they  comport  themselves  differently 
in  these  different  domains,  they  no  longer  have  the  same 
role  and  do  not  act  by  the  same  processes;  so  that  our 
elementary  psychological  tendencies  do  not  have  an 
"end,"  but  functions,  roles,  which  chance  alone  has  dis- 


§4]  TELEOLOGY    AND    MORALITY  13 

tributed  and  which  it  alone  can  take  away  according  to 
circumstances. 

But  above  all  it  must  be  remarked  in  regard  to  this 
question,  how  manifestly  false,  contrary  to  facts,  is  Her- 
bert Spencer's  explanation  by  the  theory  of  evolution. 
The  agreement  between  the  agreeable  and  the  useful, 
between  the  injurious  and  the  painful,  cannot  have  been 
an  important  factor  in  the  survival  of  the  fittest  because 
its  role  is  less  and  less  important  according  as  we  ascend 
in  the  scale  of  being.  Humanity  is  beyond  the  teleology 
of  the  senses;  so  also  are  the  higher  animals  and  all  the 
more  so  in  that  they  are  higher. 

§  4.  Teleology  and  Morality.  "So  you  wish  to  know  if 
the  good  and  the  final  purpose  are  reciprocal?"  asked 
Doctor  Pancrace.  But  honest  Sganarelle  was  concerned 
with  more  personal  matters  and  was  impatient  to  discuss 
his  domestic  problems  with  the  Aristotelian  philosopher. 
Since  Moliere,  there  has  been  little  return  to  Doctor  Pan- 
crace, and  yet  I  doubt  very  much  whether  all  the  at- 
tempts of  scientific  morality  or  of  the  science  of  morality 
do  not  always  end  in  foundering  upon  this  same  affirma- 
tion. "Yes,  the  good  and  the  final  purpose  are  recipro- 
cal. There  is  no  scientific  teleology,  no  good,  no  scientific 
morality,  nor  consequently,  scientific  politics." 

The  most  ancient  philosophers  asked  of  philosophy 
what  was  the  aim  of  human  existence;  and  if,  according 
to  Varro,  there  were  two  hundred  and  eighty-eight  pos- 
sible answers  to  this  question,  it  is  easily  seen  that  they 
were  all  equally  arbitrary.  For  some,  the  most  ideal,  the 
most  disinterested  virtue  alone  was  to  be  desired.  They 
opened  to  the  soul  splendid  glimpses  into  supermundane 
regions,  into  lands  of  dreams,  far  from  all  reality.  Others 
deceived  themselves  into  thinking  they  were  more  posi- 
tive because  they  were  more  earthly.  They  proposed 
more  material  pleasures,  enjoyment  that  was  more  imme- 
diate and  more  commonly  appreciated,  but  of  which  man 


14  METAPHYSICAL  TELEOLOGY          [Cn.I 

easily  tires  and  which  he  has  never  been  satisfied  to  con- 
sider the  ultimate  goal  of  his  existence. 

Christian  theology,  especially  at  its  beginning,  is  less 
teleologic.  It  transports  the  final  aim  beyond  the  world 
into  the  supernatural  and  can  evaluate  life  in  a  more 
positive  fashion.  Saint  Augustine's  criticism  of  pleasure 
and  pain  is  a  recall  to  reality  which  preserves  its  full 
value.  However,  in  the  course  of  history,  the  church  be- 
came teleologic  through  the  influence  of  Plato  and  Aris- 
totle. 

Biology  scarcely  dares  pronounce  the 'word  "end." 
How  much  more  reserved  should  the  observer  of  moral 
phenomena  logically  be  ?  The  one  sees  organs  adapted  to 
functions;  animate  nature  may  appear  to  him  as  if  it 
tends  towards  unity  and  wills  a  determined  end.  Is  it 
the  same  with  nature  capable  of  thought?  Ought  man 
to  seek  his  end  in  himself  or  outside  of  himself?  Sub- 
jectively or  objectively?  Should  he,  like  other  beings, 
submit  himself  to  the  laws  of  nature?  Is  it  his  moral 
duty  to  put  himself  in  harmony  with  the  general  ends  of 
life  ?  But  if  this  is  the  case,  if  he  is  borne  along  in  the 
general  evolution,  what  is  the  need  of  any  action  of  will 
on  his  part,  what  need  of  a  morality?  Whatever  is, 
ought  to  be;  whatever  is,  is  moral  and  desirable  without 
our  cooperation.  What  is  the  good  therefore  of  concern- 
ing ourselves  about  it? 

Does  thought  have  its  own  peculiar  destiny,  which  is 
capable  of  coming  into  conflict  with  the  purposiveness  of 
living  matter?  How  then  is  this  subjective  ideal  to  be 
discovered?  It  is  entirely  impossible;  neither  logic  nor 
experience  can  establish  anything  further  than  that  what 
is  desired  is  desirable.  From  a  scientific  standpoint,  the 
ideal  is  a  psychological  phenomenon  like  any  other.  It 
may  be  studied,  and  compared  but  not  laid  down  as  a 
precept.  Everyone  has  his  own  ideal  which  is  not  that 
of  his  neighbor;  some  ideals  are  vulgar,  some  noble;  some 


§4]  TELEOLOGY  AND  MORALITY  15 

well-defined,  some  vague.  There  are  those  which  are 
easily  attained,  others  are  impossible  to  realize.  It  mat- 
ters little,  their  genesis  can  be  explained  and  their  value 
estimated.  The  ideal  can  be  the  object  of  science,  but 
never  its  subject.  Science  cannot  make  of  it  an  active 
agent  which  would  have  the  right  to  command  in  its  own 
name. 

One  of  De  Musset's  heroines  is  impressed  by  a  picture 
which  represents  at  the  same  time  a  monk  praying  in  his 
cell  and  a  shepherd  singing  and  dancing  in  the  sunlight. 
"Which  is  wrong,  which  is  right?"  Science  sees  with 
Perdican  a  man  who  prays  and  one  who  sings ;  it  cannot 
tell  which  is  wrong  and  which  right. 

Must  we  return  to  the  world-old  thesis,  that  the  aim 
of  humanity  is  to  shun  pain  and  seek  pleasure  ?  And  that 
among  pleasures  there  are  some  of  a  higher  order  because 
they  are  more  lasting,  since  they  maintain  in  a  state  of 
equilibrium  the  body  of  the  individual  and  the  social 
body  of  which  it  forms  a  part?  I  believe  that  those  who 
defend  this  idea  could  add  little  to  the  splendid  sophis- 
tries of  Plato,  the  wise  theories  of  Eudoxus,  Aristippus 
and  Epicurus,  and  the  ingenious  arguments  of  the  Neo- 
Platonists.  And  the  modern  method  of  practical  obser- 
vation, if  one  has  the  courage  to  follow  it  to  its  outcome, 
would  destroy  it  completely.  Nothing  proves  that  altru- 
istic pleasures  are  greater,  or  more  lasting,  than  selfish 
ones,  or  those  of  the  mind  and  the  heart  than  the  most 
materialistic  enjoyment.  The  painful  reaction  entailed 
depends  altogether  upon  their  intensity  and  not  upon 
their  nature.  The  famous  "feeling  of  duty  fulfilled" 
which  could  impress  a  feeling  of  uniform  happiness  upon 
the  entire  life  of  every  individual,  is  an  artificial  creation 
of  the  moralists.  The  spirit  of  sacrifice,  mysticism  in 
monk  or  laymen,  intellectual  labor,  aesthetic  emotion, 
Platonic  or  sensual  love,  and  intoxication  from  alcohol  or 
opium,  all  of  these  produce  a  state  of  cerebral  excitement 


16  METAPHYSICAL  TELEOLOGY          [Cn.  I 

which  will  always  be  followed  by  a  proportionately  un- 
pleasant depression. 

Therefore  the  aim  of  morality  cannot  be  to  discover 
more  intense  pleasure,  for  the  amount  of  this  pleasure  de- 
pends upon  our  organs,  nor  to  procure  for  us  an  agreeable 
feeling  that  has  no  painful  reaction,  for  they  all  necessa- 
rily entail  that  to  the  same  extent.  Must  therefore  man 
be  advised  to  avoid  all  strong  emotion  whatever  its  na- 
ture, to  content  himself  with  insignificant  joys  so  that  he 
may  have  only  insignificant  sorrows,  and  to  consider 
pleasure  as  a  means  and  not  as  an  end?  Pleasure,  in 
fact,  informs  the  individual  of  what  is  useful  for  his 
preservation.  Pleasure  being  a  means  towards  the  main- 
tenance of  health,  the  science  of  morality  might  have- as 
its  aim  to  teach  us  how  to  make  use  of  this  means.  The 
aim  of  life  then  would  be  health ;  health  is  the  totality  of 
conditions  most  favorable  to  the  preservation  of  life. 
Conclusion:  The  aim  of  life  is  life.  Individual  or  social 
morality  would  have  no  other  precept:  we  live  in  order 
to  live  and  in  order  that  the  social  organism  of  which  we 
form  a  part  may  live.  But  ought  we  to  will  to  live  in  order 
to  live?  Generally  speaking,  man  does  not  believe  so. 
Otherwise  the  maxim:  "Propter  vitam,  vivendi  perdere 
causas"  would  be  the  expression  of  the  deepest  wisdom. 

Therefore  morality  is  not  a  science,  because  science 
cannot  give  it  a  "raison  d'etre,"  an  end. 

We  should  examine  objectively  the  different  systems 
of  morality  in  order  to  clarify  the  history  of  legal  philos- 
ophy. For  however  varied  they  may  be,  they  seem  to  us 
to  possess  the  common  characteristic  of  being  irreducible 
to  a  positive,  scientific,  or  even  to  a  formal,  logical  con- 
ception. They  all  contain  one  and  the  same  contradic- 
tion. Evety  system  of  morality  is  the  combination  of 
two  forces,  one  of  which  projects  man  beyond  reality, 
into  the  ideal,  while  the  other,  on  the  contrary,  recalls 
him  to  the  material  conditions  of  life, 


§5]     TELEOLOGY  IN  POLITICS  AND  LAW       17 

The  so-called  positive  systems  of  morality  start  from 
data  based  on  actual  facts.  Thus  sociologists,  zoologists, 
biologists  and  materialists  try  to  disengage  our  duty  from 
principles  common  to  every  society,  to  every  animal,  to 
every  living  being  and  even  to  every  form  of  matter. 
They  do  not  attempt,  however,  to  compel  us  to  live  ab- 
solutely like  a  stone,  an  animal  or  a  vegetable  cell,  a 
dog  or  even  like  a  savage  or  an  inferior  or  an  average  in- 
dividual of  civilized  society.  They  try  to  improve  every- 
thing, animate  or  inanimate,  that  is,  to  take  it  out  of 
reality  and  urge  it  toward  an  ideal.  Systems  of  mystical 
morality  scarcely  do  otherwise ;  they  cannot  do  without  a 
bond  with  matter.  They  are  cognizant  of  duties  that  are 
common  to  the  higher  and  lower  types  of  humanity,  to 
animals,  and  sometimes  even  to  every  living  being.  They 
claim  to  lift  man  from  the  earth  but  they  are  obliged  to 
lead  him  back  again.  No  system  of  morality  can  be  en- 
tirely of  this  world  or  entirely  beyond  it.  They  all  live 
in  a  perpetual  coming  and  going  between  the  matter-of- 
fact  life  and  mysticism. 

Is  it  necessary  to  add  that  however  foreign  it  may  be 
to  science,  morality  none  the  less  fully  preserves  its  gran- 
deur, its  dignity  and  its  utility  ?  That  it  is  as  legitimate 
to  deduce  it  from  a  scientific  principle  as  from  an  act  of 
religious  faith?  The  said  scientific  moralities  are  wrong 
in  only  one  thing,  that  is  in  claiming  to  be  scientific.  If 
they  were  not  sincere  in  this  claim,  they  would  be  guilty 
of  unfair  competition  with  the  old  systems  of  morality. 

§  5.  Teleology  in  Politics  and  in  Law.  It  was  impor- 
tant for  us  to  understand  the  place  of  morality  in  the 
field  of  science,  for  politics  finds  itself  in  exactly  the  same 
situation. 

Societies,  especially  when  they  are  highly  civilized  and 
composed  of  mixed  races,  are  in  a  state  of  perpetual 
struggle,  because  opposing  conceptions  of  the  ideal  strive 
with  one  another  for  supremacy.  The  role  of  politics  is 


18  METAPHYSICAL   TELEOLOGY        [Cn.  1 

to  choose  between  them;  but  has  it  a  scientific  criterion 
by  which  to  do  this? 

Scientifically,  there  is  no  aim  to  the  existence  of  the  in- 
dividual; still  less  so  to  that  of  societies.  Some  believe 
that  the  destiny  of  man  is  to  serve  God  upon  earth;  for 
others,  the  ideal  confines  itself  to  an  equal  distribution 
among  individuals  of  sufficient  food.  A  moral  town  with 
simple  and  well  regulated  customs  is  one  ideal ;  a  wealthy, 
luxurious  and  artistic  city  is  another.  Is  a  civilization 
which  draws  out  a  tranquil  and  obscure  existence  prefer- 
able to  that  which  illuminates  the  world  for  an  instant, 
fades  away,  and  leaves  behind  only  a  memory?  Ought 
we  to  imitate  those  who  have  done  the  most  or  those 
who  have  done  the  best  ?  In  those  dreams  which  come  in 
themselves  to  symbolize  our  ideas,  some  see  immense  fac- 
tories loading  upon  wagon?  and  later  upon  boats,  piles  of 
petty  wares  for  the  benefit  of  an  ever  increasing  popula- 
tion ;  while  others  think  of  the  qualitative  progress  of  hu- 
manity, —  the  existence  upon  our  little  planet  of  a  less 
numerous,  but  individually  a  happier  race;  the  creation 
of  less  life,  but  of  higher  life. 

Why  one?  Why  the  other?  Instinct  makes  one  hesi- 
tate and  take  an  intermediate  course;  this  no  doubt  is 
the  solution  to  be  preferred,  because  the  whole  question 
rests  in  complete  obscurity  and  no  theory  deduced  by 
human  reasoning  can  be  trusted. 

The  politician  can  only  hope  that  science  will  guide 
him  in  the  choice  of  his  ideas.  She  will  direct  his  actions, 
but  holds  herself  at  the  disposition  of  both  good  and  evil 
causes.  The  arms  she  fashions  are  at  the  service  of  the 
assassin  as  well  as  of  the  honest  man  trying  to  defend  his 
life.  To  be  sure,  the  weapons  of  political  science  are  not 
yet  very  formidable.  But  it  can  be  foreseen  that  the 
social  sciences  will  give  the  politician  means  of  acting 
with  greater  efficiency. 

Legal  science  does  not  set  up  for  itself  its  conceptions 


§6J  TELEOLOGY  IN  HISTORY  19 

of  the  ideal.  It  finds  them  formulated  explicitly  or  im- 
plicitly in  the  texts.  Some  are  tolerated,  others  admit- 
ted, while  others  still  are  imposed  by  the  legislator.  Our 
modern  legislations  are  somewhat  complex  in  this  respect. 
They  recognize  a  rather  broad  freedom  in  religious  belief, 
—  protect,  up  to  a  certain  point,  the  aesthetic  ideal  by 
preventing  the  destruction  of  memorials  of  the  past, — 
favor,  without  absolutely  imposing  it,  family  life,  work  or 
charity,  and  employ  constraint  only  to  repress  violations 
of  moral  conceptions  which  seem  to  them  of  prime  im- 
portance. The  law  does  not  have  the  same  interest  for 
all  of  these  institutions;  it  is  the  business  of  the  jurist  to 
determine  the  degree  of  this  interest  without  taking  any 
account  of  his  own  personal  ideal.  If  he  modifies  in  any 
way  whatever  the  philosophical  thought  which  emanates 
from  the  text,  he  no  longer  fashions  law  but  politics.  To 
take  a  celebrated  example,  the  French  Civil  Code  recog- 
nizes perfectly  the  right  of  every  citizen  to  take  his  own 
pleasure  as  his  ideal;  whoever  has  a  fortune  can  do  with 
it  as  he  will  and  spend  it  to  amuse  himself.  Nevertheless 
moral  considerations  make  it  intervene  to  hinder  the 
prodigal  from  squandering  it.  The  proportion  to  be  es- 
tablished between  the  ideal  of  the  State  and  that  of  the 
individual  exists  by  implication  in  the  text.  It  is  the 
business  of  the  jurist  to  extricate  it  even  if  he  judges  it 
to  be  harmful  or  troublesome. 

Law  is  therefore  an  objective  science  which  can  be  pur- 
sued by  precise  means.  It  does  not  clash  with  any  tele- 
ology. One  cannot  reproach  it,  as  one  can  morality  or 
politics,  with  arbitrariness  in  the  choice  of  its  ideal,  since 
it  finds  this  ideal  in  reality,  and  besides  never  appropri- 
ates it  to  itself. 

§  6.  Teleology  in  History.  From  a  rational  point  of 
view,  one  might  be  surprised  to  see  the  idea  of  final  cause 
appear  in  political  history.  The  multiplicity  of  events, 
the  complexity  of  their  character,  sometimes  fortunate, 


20  METAPHYSICAL  TELEOLOGY         IC!H.  I 

sometimes  unfortunate,  periods  of  great  brilliance  fol- 
lowed by  a  decline,  wars,  invasions,  and  the  periodic  de- 
struction of  the  most  splendid  civilizations,  —  all  of  this 
does  not  show  forth  very  clearly  a  unity  of  direction  for 
humanity,  a  function  and  still  less  an  end  to  the  exist- 
ence of  peoples. 

Nevertheless  up  till  very  recently,  historical  teleology 
was  the  dominating  factor  in  philosophy.  A  few  select 
minds  elaborated  an  enormous  variety  of  theories.  No 
doubt  historians  properly  speaking,  kept  aloof  from  these 
controversies  and  worked  according  to  their  positive 
method.  But  isolated  from  philosophy,  they  remained  a 
long  time  isolated  from  other  sciences;  and  when  their 
solitude  became  too  heavy,  they  often  made  knowledge 
too  easy  and  suspicions  through  theories  which  were 
sound  only  in  appearance,  and  hardly  to  be  commended. 
History,  more  than  any  other  science,  has  suffered  from 
the  theory  of  final  causes. 

The  reason  of  this  is  simple.  The  earliest  role  of  his- 
tory w?.s  religious,  and  that  very  legitimately.  The  theo- 
logian or  the  metaphysician  has  the  right,  it  is  even  his 
duty,  to  ask  of  historical  observation  what  may  be  the 
aim  of  humanity.  Does  not  history,  the  observation  of 
human  life,  play  a  large  part-  in  the  religious  or  philo- 
sophical convictions  of  individuals?  We  might  under- 
stand today,  as  in  former  times,  a  history  with  a  theolog- 
ical role,  such  as  Bossuet  wrote,  one  which  seeks  to  dis- 
cover in  facts  an  interpretation  of  the  divine  will.  It 
might  be  theistic,  pantheistic  or  materialistic.  Such  a 
history  might  be  of  a  nature  to  strengthen  individual 
convictions  without  ever  being  able  to  furnish  results  sci- 
entifically established. 

But  for  it  to  have  even  theological  importance,  it 
would  have  to  employ  a  scientific  method.  Not  only 
would  it  be  obliged  to  produce  facts  firmly  established 
without  appeal  to  faith,  but  it  would  be  necessary  to 


§6]  TELEOLOGY  IN  HISTORY  21 

start  from  facts  in  order  to  ascend  to  the  final  cause,  and 
not  interpret  the  facts  by  the  final  cause.  If,  for  exam- 
ple, we  wish  to  establish  by  means  of  history  the  fact 
that  this  is  the  best  possible  world,  we  must  seek  to  dis- 
cover whether  evil  exists  only  as  an  exception;  and  not 
maintain  that  a  certain  evil  is  necessary  to  avoid  a  greater 
one  or  to  produce  some  good.  Such  an  assertion  may 
be  true,  no  doubt,  but  the  historical  examination  can  be 
of  no  use  to  it.  Now,  for  a  long  time  historical  philos- 
ophers have  been  not  only  theologians,  but  theologians 
who  do  not  write  histories,  but  impose  a  formula  upon 
the  facts  without  taking  the  least  pains  to  try  and  extri- 
cate a  formula  from  the  facts. 

Besides  it  must  be  acknowledged  that  certain  philos- 
ophers, especially  among  German  thinkers,  have  frankly 
declared  and  maintained  that  the  philosophy  of  history 
ought  to  be  constructed  by  the  "a  priori"  method  and 
quite  without  the  study  of  facts.  Such  philosophers  are 
scarcely  dangerous;  but  many  others  know  how  to  con- 
ceal their  method  quite  skilfully,  or  are  even  the  dupes  of 
a  preconceived  idea  which  they  believe  they  discover  in 
reality. 

Nobody  denies  that  teleology  has  been  abused  in  his- 
torical philosophy.  It  is  doubtful  whether  even  its  use 
should  not  be  prohibited.  The  general  tendency  is  to  al- 
low greater  freeom  in  this  respect  to  the  historian  than 
to  the  naturalist.  Is  this  legitimate?  We  do  not  hesi- 
tate to  answer  in  the  negative. 

If  the  biologist  falls  into  teleology,  it  is  a  special  and 
particular  kind.  He  says  that  the  eye  is  made  for  the 
purpose  of  seeing,  the  ear  for  the  purpose  of  hearing.  He 
ventures  to  give  a  special  reason  for  an  adaptation,  but 
for  an  adaptation  which  is  not  to  be  doubted,  since  the 
physical  functions  are  found  to  be  the  same  in  an  infinite 
number  of  subjects.  Can  a  historical  function,  the  role 
of  an  event  in  history,  be  as  clearly  shown?  What  has 


22  METAPHYSICAL  TELEOLOGY          [Cn.I 

been  the  historical  function  of  a  particular  war,  of  the 
accession  to  the  throne  of  a  particular  king,  or  of  a  par- 
ticular revolution  in  a  particular  country?  No  doubt,  an 
attempt  has  been  made  to  explain  in  detail  each  event  in 
history  as  having  a  particular  aim,  —  as  being  the  result  of 
a  superior  will  which,  for  special  purposes,  assists  human- 
ity upon  pr6per  occasions.  But  only  very  ancient  and 
very  naive  historians  have  proceeded  in  this  manner. 
The  wiser  have  ignored  particular  teleogism  in  order  to 
attain  general  teleogism,  —  general  enough  to  embrace  the 
universe.  Leibnitzian  optimism,  Hegelian  realization  of 
the  idea,  the  law  of  progress,  the  passage  from  homoge- 
neity to  heterogeneity,  are  the  products  of  this  method. 
While  the  physiologist  starts  from  the  adaptation  of  the 
organs  and  cells  to  the  preservation  of  life,  in  order  to 
infer  a  vital  force  which  tends  to  become  a  reality 
throughout  the  whole  universe,  the  historian-philosopher 
is  constrained  to  formulate  the  principle  in  its  largest 
conception,  in  order  to  make  the  application  of  it,  first  to 
classes  of  events,  afterwards  to  particular  events. 

And  it  is  not  through  simple  love  of  the  "a  priori" 
method  or  through  indolence,  that  the  most  practical 
scholars  have  written  like  the  greatest  mystics.  They 
have  been  compelled  to  do  so  by  the  force  of  circum- 
stances. An  inductive  study  of  final  causes  in  [history 
can  end  nowhere.  Whoever  has  no  "a  priori"  idea  can 
find  no  "raison  d'etre"  for  a  particular  event,  or  rather, 
he  might  find  hundreds  of  them.  And  if  a  final  cause 
were  found  for  this  historical  fact,  another  historical  fact, 
even  the  most  closely  akin,  might  not  have  the  same  sig- 
nificance. One  war  develops  civilization,  another  retards 
it,  while  still  another  aids  or  destroys  it  completely.  To 
take  an  extremely  simple  illustration,  we  should  never 
establish  between  war  and  civilization  a  relation  analo- 
gous to  that  which  exists  between  the  eye  and  the  sight. 
If  one  is  to  adhere  to  teleology  in  history,  the  most  scien- 


§  7  ]   TELEOLOGY,  IN  LEGAL  DEVELOPMENT  23 

tific  way,  in  my  opinion,  is  to  return  to  the  mythological 
method,  i.e.  to  apply  as  a  counterpart  to  human  history 
a  divine  history  which  unfolds  on  parallel  lines.  The  di- 
recting will,  which  itself  passes  through  the  most  varied 
situations,  thus  acquires  a  suppleness  which  it  does  not 
have  in  our  modern  methods.  The  rivalry  between 
Venus  and  Juno  serves  well  enough  to  explain  all  the 
varied  turns  of  fortune  in  the  Trojan  War;  and  this  sym- 
bolism has  the  great  advantage  that,  being  fashioned  in 
accordance  with  reality,  there  is  no  need  to  torture  it 
with  the  systematic  cruelty  of  the  philosophic  historian. 

§  7.  Teleology  and  Legal  Development.  As  regards  the 
teleologic  tendency,  the  history  of  law  may  either  borrow 
its  theories  from  other  sciences  or  create  its  own. 

Institutions  serve  some  purpose;  but  either  very  gen- 
eral or  very  special  ends  may  be  attributed  to  them.  By 
connecting  the  moral  with  the  physical  world,  we  may 
represent  the  law  as  the  product  of  natural  forces  which 
tend  to  expand,  preserve  and  perfect  life.  We  may  join 
it  to  morality  itself,  and  affix  to  it  an  ideal  to  be 
achieved.  Historic  teleology  will  necessarily  see,  in  the 
changes  in  the  laws,  the  accomplishment  of  the  task  im- 
posed upon  humanity.  Could  we  not,  therefore,  exclude 
teleology  from  the  history  of  the  law,  only  by  excluding 
it  from  the  other  sciences? 

Now,  when  it  thus  assumes  a  very  general  form,  it  is 
particularly  anti-scientific  and  to  be  condemned.  It  at- 
tracts those  who  wish  to  imprison  the  world  in  a  for- 
mula; but  the  scholar  who  unfortunately  allows  himself 
to  be  seduced  by  it,  will  be  guided  through  all  of  his  ca- 
reer by  a  prejudice,  and  will  go  through  life  without  see- 
ing at  all  the  world  of  realities. 

A  very  special  form  of  teleology  does  not  present  the 
same  dangers,  and  may  be  inseparable  practically  from 
the  positive  study  of  functions.  The  function  of  social, 
moral,  juridical  or  worldly  facts  is,  and  has  always  been, 


24  METAPHYSICAL  TELEOLOGY          ( Ca- * 

beyond  human  foresight  and  intelligence.  The  greatest 
jurist  has  only  very  vague  ideas  concerning  the  services 
that  the  laws  which  he  expounds  and  explains  render  to 
society;  the  economist,  who  for  centuries  has  looked  upon 
institutions  from  the  point  of  view  of  their  utility,  knows 
little  more  than  the  jurist  in  what  respect  they  are  of 
service  to  man.  As  for  those  who  at  first  glance  and 
without  special  study  would  like  to  cut  off  from  the  laws 
whatever  appears  useless  to  them,  they  would  commit,  in 
the  name  of  reason,  the  worst  of  follies,  and  in  the  name 
of  humanity  the  worst  of  cruelties  and  would  finish  their 
successive  mutilations  by  annihilating  themselves.  Thus 
the  first  step  towards  wisdom  is  the  knowledge  that  we 
are  ignorant  of  nearly  all  of  the  functions  of  our  laws,  or 
of  the  evil  or  the  good  which  they  may  bring  us. 

The  functional  study  of  law  is  as  important  as  it  is 
delicate.  We  find  ourselves  in  the  same  situation  as  the 
biologist,  but  very  much  behind  him;  one  example  will 
suffice:  The  idea  of  punishment  in  criminal  law  is  one  of 
the  most  general  and  elementary.  Why  should  malefac- 
tors be  punished?  Of  what  use  is  the  repression  of  the 
offense?  This  subject  has  been  discussed  for  ages.  And 
yet,  the  most  important  social  utility  of  that  universal 
institution  was  long  passed  over  unperceived ;  to  discover  it, 
the  profound  researches  of  reflective  insight  were  needed. 
The  function  of  the  penalty  is  much  less  to  punish 
the  culprit  than  to  maintain  the  moral  conscience  by  ex- 
pressing the  disapprobation  of  all  towards  the  offensive 
act.  Durkheim's  exposition  seems  to  me  conclusive  on 
this  point.  Yet  we  remained  long  ignorant  of  a  truth  so 
evident.  Why  then  should  we  pretend  to  understand  the 
functions  of  more  special  and  less  studied  juridical  rela- 
tions ? 

We  must  not  content  ourselves  with  the  apparent  role 
of  institutions,  but  must  search  in  them  for  their  hidden 
functions.  It  is  a  truth  of  experience  that  every  juridical 


§8]  CONCLUSION  25 

conception  has  much  more  "raison  d'etre"  than  we  may 
discover  "a  priori."  It  is  sometimes  asserted  that  a  con- 
stitutional monarch  or  the  president  of  the  French  Re- 
public is  of  no  real  use,  and  could  be  replaced  by  a  man- 
nikin  or  a  signing  machine;  the  opinion  is  very  nearly 
true,  if  we  confine  ourselves  to  the  apparent  functions;  it 
is  totally  false  for  anyone  who  looks  into  the  real  func- 
tions. 

In  this  study  of  functions,  we,  like  the  biologist,  coast 
along  the  shore  of  teleology ;  some  caution  is  necessary  to 
avoid  being  wrecked  upon  it.  Let  us  not  assert  that 
every  rule  of  law  is  of  necessity  useful  for  something,  for 
we  could  not  explain  why  that  is  necessary.  Let  us  in- 
deed point  out  that  between  man's  needs  and  man's  law 
there  are  certain  adaptations  which  are  not  his  own  work. 
But  let  us  not  seek  for  the  explanation  of  probably  for- 
tuitous coincidences.  Most  of  all,  let  us  not,  by  employ- 
ing the  often  misleading  terms,  such  as,  "instinct,"  "the 
directing  force  of  history,"  "predestination"  or  "predis- 
position of  human  nature,"  invent  some  petty  provi- 
dences which  are  supposed  to  explain  everything  but 
really  explain  nothing. 

§  8.  Conclusion.  Science  cannot  deny  teleology;  but 
likewise  cannot  make  use  of  it.  Science  is  the  effort  that 
man  makes  through  his  reason  alone,  aided  by  experi- 
ence, to  attain  the  truth.  It  is  not  certain  that  it  ob- 
tains all  the  truth,  or  even  the  most  important  truths; 
indeed,  going  to  the  extreme  limit  of  scepticism,  perhaps 
science  attains  only  an  entirely  relative,  never  an  abso- 
lute truth.  This  matters  little.  But  science  must,  under 
penalty  of  failure,  admit  only  those  truths  which  are  un- 
assailably  authentic  and  factual;  and  the  only  method 
which  enables  such  truths  to  be  ascertained  is  the  study 
of  efficient  causes,  i.e.,  mechanicism. 

There  are,  to  be  sure,  two  classes  of  believers  in  an  ex- 
clusive mechanicism.  Some  see  in  it  an  objective  method, 


26  METAPHYSICAL  TELEOLOGY          [  CH.  I 

capable  of  explaining  everything  —  of  bringing  everything 
back  to  the  same  mode  of  scientific  conception,  and  of 
looking  at  all  things  under  all  of  their  aspects.  But  the 
more  cautious  class  of  believers  conceive  it  only  as  a  sub- 
jective method,  which  confines  itself  to  the  particular 
situation  in  which  our  intelligence  finds  itself  in  relation 
to  reality.  For  the  former,  teleologism  is  false  in  itself; 
for  the  latter,  it  is  merely  inapplicable  to  science.  Then, 
it  might  be  possible  (though  the  question  cannot  be  settled 
scientifically)  that  the  scientific  method  is  not  suited  to 
investigating  all  phenomena,  nor  all  the  aspects  of  a  sin- 
gle phenomenon. 

We  do  not  believe  that  science  can  either  affirm  or 
deny  final  causes  —  either  in  its  beginnings,  or  in  its  con- 
clusions, by  supposing  that  the  latter  have  reached  the 
infinite.  To  bring  in  final  causes  as  hypotheses  seems  to 
us  useless  and  dangerous.  They  cannot  fill  in,  even  pro- 
visionally, the  gaps  in  our  knowledge,  since  it  is  certain 
"a  priori ' '  that  they  cannot  occupy  in  science  any  definite 
place.  Inasmuch  as  we  are  ignorant  of  why  opium  makes 
us  sleep,  we  prefer  to  say  that  we  know  nothing  about  it, 
rather  than  to  invent  a  "virtus  dormitiva"  for  the 
occasion. 

It  is  said  that  mechanicism  establishes  but  does  not 
explain.  I  believe  this  assertion  to  be  very  unequally 
true.  Mechanicism  is  capable  of  making  a  full  explana- 
tion of  the  origin  of  a  phenomenon;  it  explains  even  the 
existence  of  functions,  the  relations  between  the  func- 
tions and  the  organs,  and  the  adaptation.  But  mechanic- 
ism does  not  explain  the  "raison  d'etre"  of  that  adapta- 
tion, because  it  cannot  be  scientifically  established  that 
these  "raisons  d'etre"  exist.  No  doubt,  in  sciences,  like 
physiology,  where  the  adaptation  of  the  function  to  the 
organ  is  a  constant  fact,  the  philosophic  mind  will  never 
be  entirely  satisfied.  In  the  moral  and  historical  sci- 
ences, the  study  of  function  and  of  its  cause  approaches 


§  8  ]  CONCLUSION  27 

completeness  of  explanation,  for  it  cannot  be  demon- 
strated that  there  remains  anything  further  to  be  ex- 
plained. 


BIBLIOGRAPHY 

FRANCIS  BACON,  De  Dignitate  et  Augmentiis  Scientiarum,  bk. 
I,  chap.  IV;  SPINOZA,  Ethics,  I  prop.  36 — appendix;  SULLY  PRUD- 
HOMME  and  CHARLES  RICHET,  Le  probleme  des  causes  finales 
(1903);  ARISTOTLE,  On  the  Parts  of  Animals,  I,  1;  Commentators 
on  this  work  down  to  the  sixteenth  century  cited  in  the  edition  of 
Guillelmus  du  Vallio  (Paris,  1629). 

SCHOPENHAUER,  Die  Welt  als  Wille  und  Vorstellung,  especially 
Erganz.  §  26,  Zur  Teleologie.  See  also  §§  44,  45,  47;  HARTMANN, 
Philosophic  des  Unbewussten,  Der  Darwinismus  (French  trans,  by 
GUEROULT);  KAUFMANN,  Philosophic  naturelle  d'Aristote  (trans,  by 
DEIBER,  1898). 

TH.  RIBOT,  La  psychologic  des  sentiments,  pp.  87  seq.;  HERBERT 
SPENCER,  Principles  of  Psychology,  vol.  I,  §§  115-127;  SCHNEIDER, 
Freude  und  Leid  des  Menschengeschlechts  (1883);  PLATO,  Philebus; 
ARISTOTLE,  Ethics,  bk.  I,  chaps.  2,  3;  ST.  AUGUSTINE,  De  Civitate 
Dei,  bk.  XIX,  chaps.  1-5;  HAECKEL,  Der  Monismus  (French  trans, 
by  DE  LAPOUGE). 

WEBER,  Etude  re'aliste  de  1'acte  et  de  ses  consequences  morales 
in  Revue  de  metaphysique  et  de  morale  (1894);  LEVY-BRUHL,  La 
morale  et  la  science  des  moeurs  (1903);  A.  NAVILLE,  La  morale  con- 
ditionelle,  in  Revue  philosophique  (1906),  p.  561;  DURKHEIM,  De  la 
division  du  travail  social  (2d  ed.,  1902),  Intr.  and  p.  76,  Preface  of 
1st  ed.  and  Conclusions;  HUME,  Four  Dissertations. 

ROBERT  FLINT,  The  Philosophy  of  History  in  Germany  (French 
trans,  by  CARRAU,  1875);  HERDER,  Ideen  zur  Philosophic  der  Ge- 
schichte  der  Menscheit;  KANT,  Idee  zur  einen  allgem.  Geschichte; 
FICHTE,  Grundzuge  des  gegenwartigen  Zeitalters;  KRAUSE,  Reine 
i.e.  allgem.  Lebenslehre  und  Philosophic  der  Geschichte. 

WAPLER,  Die  Geschichtlichen  Weltanschauung  Schopenhauers,  in 


28  METAPHYSICAL  TELEOLOGY          [Cn.  I 

Archivfiir  Gesch.  der  Phil.  (1905);  HEGEL,  Werke  (1870);  MAURICE 
BARRES,  De  Hegel  aux  can  tines  du  nord,  Le  jardin  de  B£r£nice; 
SCHMOLLER,  Principes  d 'Economic  politique  (French  trans.  Platou, 
I,  pp.  53,  269) ;  ZIEGLER,  Das  Wesen  der  Kultur  (Leipzig,  1902). 
"Man  is  an  apprentice,  pain  is  his  master." 


CHAPTER  II 
HUMAN  TELEOLOGY 

§1.  PSYCHOLOGICAL  DETERMINISM  AND  THE  LAW.— §2.  THE 
WILL  AND  ACTION  IN  PSYCHOLOGICAL  LIFE.— §  3.  THE  HUMAN 
WILL  AS  JURIDICAL  CAUSE.— §  4.  THE  WILL  AS  JURIDICAL  PHE- 
NOMENON OR  EPIPHENOMENON.— §  5.  HETEROGENEITY  OF  ENDS. 
— §  6.  CONCLUSION. 

§  1.  Psychological  Determinism  and  the  Law.  Like 
every  abstract  conception,  that  which  sees  in  the  human 
will  the  basis  of  our  institutions  is  common  to  widely  dif- 
ferent minds.  The  bitterest  opponents  who  wish  to  have 
not  a  single  point  of  contact  are  compelled,  by  the  irony 
of  analysis,  to  become  reconciled  for  a  moment. 

In  fact,  that  foresight  of  our  fathers  which  may  be  re- 
garded as  the  foundation  of  our  legal  past,  some  choose 
to  consider  as  ethical  and  well-meaning;  every  detail  of 
our  old  laws  is,  in  their  opinion,  an  ingenious  and  delicate 
stroke;  they  read  into  each  line  sentiments  of  love  and 
devotion  to  family  and  native  land.  There  are  others 
who  likewise  interpret  old  customs  as  a  human  device, 
but  a  device  abounding  in  treachery  and  cunning.  What 
villainous  plots  have  kings,  priests,  aristocrats,  and  even 
simple  citizens  and  ordinary  men  invented  in  order  to 
hold  the  people  in  subjection !  What  clever  schemes  has 
the  entire  masculine  sex  concocted  to  impose  slavery 
upon  woman! 

For  other  reasons,  we  are  prevented  from  agreeing  with 
those  artless  thinkers  and  with  many  truly  learned  men 
who,  notwithstanding  a  deep  knowlegde  of  history  and 
institutions,  believe  that  the  principal  factor  found  there- 

29 


30  HUMAN  TELEOLOGY  [CH.li 

in  is  the  human  will .  "A  priori , ' '  this  position  seems ,  more- 
over, very  reasonable.  In  the  narrow  meaning  of  the 
word,  man  alone  has  a  history,  a  past  where  the  energies 
of  groups  and  individuals  have  been  in  continual  action, 
—where  laws,  customs,  and  manners  have  been  minutely 
examined,  modified,  and  transformed  through  the  cen- 
turies by  free  and  conscious  beings. 

Free?  That  is  a  doubtful  point.  Is  not  liberty  an  illu- 
sion of  the  human  brain?  If  human  decisions  are  in- 
cluded in  universal  determinism,  as  is  every  other  physical 
or  biological  phenomenon,  the  action  of  the  will  has  no  im- 
portance and  is  never  the  real  cause  of  the  Law.  If,  on 
the  other  hand,  we  admit  free  will,  we  break  the  se- 
quence of  causes  and  introduce  into  history  an  indeter- 
minate element;  therefore  we  can  no  longer  construct  a 
scientific  work. 

Many  historians  of  the  law  have  considered  it  their 
duty  to  bring  up  this  question  of  psychological  deter- 
minism and  free  will,  only  to  answer  it  by  falling  back 
upon  authority.  It  is  wiser  to  leave  it  to  the  professional 
philosophers.  Nevertheless,  in  order  to  understand  his- 
tory, it  is  useful  to  gain  a  clear  idea  of  the  fact  that  the 
old  conceptions  of  both  schools  are  somewhat  antiquated 
and  out  of  use.  It  is  contrary  to  the  most  elementary 
observation  to  picture  the  will  as  a  special  faculty  of  the 
soul  which  has  as  its  mission  to  decide  a  conflict  where 
the  arguments  have  been  developed  by  the  intellect  or 
feelings,  and  which  classifies  motives  and  incentives, 
choosing  among  them  with  entire  independence.  But  the 
old  deterministic  metaphor  in  which  man  plays  the  part 
of  a  balance,  where  his  thoughts,  desires  and  beliefs  are 
forces  foreign  to  him,  externally  produced  and  weighed  in 
some  scales  or  other,  cause  his  decision,  is  also  aban- 
doned. These  rough  conceptions  have  given  way  to  more 
delicate  ones,  some  of  which  may  still  use  the  term  free 
will  and  others  determinism,  but  all  of  which  presuppose 


§  2]          WILL  IN  PSYCHOLOGICAL  LIFE  31 

an  active  part  taken  by  extraneous  causes  in  human  de- 
cision, as  if  by  its  own  essence  and  accord. 

However,  it  matters  little  to  us.  The  strictest  deter- 
minism or  most  unrestricted  free  will  would  in  no  way 
change  our  method.  Practically,  we  shall  never  have  to 
explain  entirely  an  act  of  individual  nor  even  of  collective 
will.  An  absolute  tyrant  or  a  parliamentary  assembly 
makes  a  decision.  Have  they  been  driven  to  it  by  a 
popular  current  or  by  a  group,  or  by  some  external  force? 
What  part  springs  from  their  personal  initiative  ?  That  is 
all  we  wish  to  know.  But  was  the  legislator  well  or  ill, 
playful,  calm  or  over-excited?  All  of  this  may  have  an 
influence  upon  the  decision  made,  and  yet  we  are  not 
going  to  raise  all  the  questions  of  hygiene,  medicine  and 
physiological  chemistry  which  would  be  necessary  for 
a  complete  explanation  of  the  legislative  phenomenon. 
Whether  a  certain  power  of  the  human  brain  to  choose 
between  different  motives  is  admitted  or  denied,  it  will 
stand  in  our  way  no  longer. 

The  role  of  the  human  will  in  the  law  is  foreign  to  de- 
terministic philosophy.  We  shall  always  have  to  con- 
sider the  will  as  a  synthesis  of  an  aggregate  of  incalculable 
causes,  and  do  this  without  expressing  an  opinion  upon 
its  nature. 

§  2.  The  Will  and  Action  in  Psychological  Life.  The 
will  is  therefore  for  us  a  positive  phenomenon  whose  ex- 
terior manifestations  we  can  discern,  but  whose  intimate 
nature  does  not  concern  us.  How  is  it  to  affect  human 
action,  and,  more  particularly,  the  creation  of  the  law? 

Even  mere  animals  have  an  aim  to  their  action.  They 
act  in  order  to  obtain  a  certain  result.  They  drink  so 
that  they  may  no  longer  suffer  from  thirst,  and  eat  to 
appease  hunger.  There  exists,  even  in  these  rudimentary 
minds,  the  foresight  of  a  feared  or  desired  future,  more  or 
less  immediate,  which  they  try  to  attain  or  avoid,  and 
they  possess  besides  a  certain  knowledge,  at  least  in- 


32  HUMAN  TELEOLOGY  [CH.  II 

stinctive,  of  the  means  to  employ  to  attain  this  future. 
The  animal  obeys  the  final  cause  before  acting,  it  imag- 
ines a  state  which  does  not  yet  exist  and  which  it  will 
realize  through  its  own  efforts;  without  this  anticipated 
knowledge  of  what  will  be,  it  would  not  take  the  trouble 
to  budge.  La  Fontaine  was  shocked  (and  rightly  so)  at 
those  who  maintained  the  contrary.  He  attributed  to 
animals  traits  of  remarkable  intelligence,  which  implied 
cunning,  perspicacity  in  the  employment  of  means,  and 
above  all,  a  very  nice  conception  of  an  aim  to  be  at- 
tained. 

In  regard  to  man,  can  the  question  even  gain  a  foot- 
hold? Can  we  judge  him  as  Descartes  judged  beasts, 
consider  his  acts  as  devoid  of  any  intelligence,  of  any 
connection  with  provision  for  the  future  and  the  final 
cause,  subject  him  to  the  efficient  cause  and  treat  him  as 
a  "machine  where  one  movement  starts  another  " ?  Yes, 
and  No. 

Certainly  man  has  desires  and  aims  of  action  to  guide 
him,  and  sontething  more  distant  and  exalted, — ideals  to 
which  he  consecrates  his  entire  life  and  which  he  does  not 
even  hope  to  realize  in  his  life-time.  Probably  coarse  in 
their  beginning,  they  have  become  by  degrees  less  imme- 
diate and  selfish,  and  more  lofty. 

Now,  if  every  human  action  is  preceded  by  a  desire, 
and  if  the  intention  of  gratifying  it  is  the  only  cause 
which  can  make  man  prefer  effort  to  repose,  the  history 
of  human  aims  swallows  up  the  history  of  humanity ;  the 
will  is  there  the  only  director.  What  past  generations 
have  desired  and  willed  corresponds  exactly  to  what  they 
have  done.  Especially  do  the  juridical  monuments  of  the 
past  express  the  desires  or  ideals  of  the  legislator  and  of 
those  who  have  helped  in  the  development  of  law  or  cus- 
tom. The  history  of  the  law  becomes  the  history  of  jurid- 
ical aims,  that  is,  the  history  of  the  philosophy  of  Law. 

Jhering  has  constructed  his  subtle  work,  "Der  Zweck 


§  2j          WILL  IN  PSYCHOLOGICAL  LIFE  33 

im  Recht,"  upon  such  a  basis.  No  jurist  can  read,  with- 
out a  feeling  of  gratitude,  that  production,  which  inti- 
mately connects  the  law  with  general  philosophy ;  but  the 
fact  cannot  be  disguised  that  a  large  part  of  his  argumen- 
tation rests  upon  a  false  application  of  formal  logic  and 
not  upon  a  truly  objective  method.  In  fact,  he  proves 
very  clearly  that  it  is  always  possible  to  attribute  logi- 
cally a  reasoned  aim  to  every  act,  even  the  most  unreason- 
able. Observed  from  without,  every  one  of  our  move- 
ments can  be  explained  as  having  a  premeditated  end. 
He  concludes  from  this  that  the  true  motive  force  of  our 
actions  is  necessarily  the  desire  for  realization.  A  con- 
clusion doubly  rash !  Psychological  observation  of  inter- 
nal phenomena  alone  might  furnish  all  the  needed  infor- 
mation if,  in  fact,  man  always  knew  what  he  desired  be- 
fore he  acted.  In  case  this  were  so,  it  would  still  remain 
to  be  proved  that  this  purposive  representation  is  the 
cause  of  our  decision. 

Observation  certainly  seems  to  prove  the  contrary. 
Our  most  reasonable  acts  often  have  no  aim  which  has 
been  reasoned  out.  The  things  which  we  do  through 
habit  or  in  imitation  of  somebody  or  something,  and 
which  are  so  numerous  in  our  daily  life  that  they  may  al- 
most completely  absorb  an  individual's  existence,  are  not 
preceded  by  any  representation  of  a  future  to  be  realized, 
or  by  the  search  for  any  enjoyment.  Those  who  saunter 
and  lounge  around  "to  kill  time,"  frankly  acknowledge 
that  they  have  no  aim  to  their  actions,  for  "killing  time" 
cannot  be  a  reasonable  desire. 

The  man  who  is  active  and  conscientious  does  not  be- 
come so  by  the  grandeur  of  the  projects  which  he  con- 
ceives, but  he  seeks  a  vocation  and  an  aim  in  harmony 
with  his  character.  He  proposes  to  do  right  before  know- 
ing what  he  will  do  to  do  right.  It  has  been  said  that  it 
is  easier  to  do  one's  duty  than  to  know  where  the  duty 
lies.  This  may  be  better  expressed  by  saying  that  our 


34  HUMAN  TELEOLOGY  [  CH.  n 

will  often  operates  in  empty  space,  without  a  concrete 
representation  of  a  future  to  be  realized.  It  is  no  longer 
formal  logic,  but  the  observation  of  life  which  exhibits 
man  as  poor  in  desires  and  plans.  He  acts,  urged  on  by 
multiple  internal  or  external  forces.  He  embellishes  his 
actions  with  teleologic  representations,  with  dreams  of 
the  future;  but  how  artificial  these  aims  sometimes  are, 
how  foreign  to  his  true  nature!  Thus  man  is  inclined  to 
give  his  life  a  very  general  aim;  in  this  way  he  may  jus- 
tify, by  a  single  reason,  acts  which  are  most  contradic- 
tory and  have  the  most  different  psychological  causes. 

Thus  certain  Utopias,  though  as  little  attractive  as 
reasonable,  succeed  none  the  less  when  they  are  adapted 
for  the  subjective  development  of  widely  different  tem- 
peraments, giving  some  a  pretext  for  needed  devotion 
and  sacrifice,  and  to  others,  for  violence,  the  spirit  of  des- 
potism and  wickedness. 

Clearly,  there  is  no  need  to  exaggerate.  -The  human 
aim  (material  or  ideal  desire)  is  a  force  which  may  acci- 
dentally be  the  only  real  cause  of  an  action.  But  it  is 
certain  that  this  is  not  always  and  necessarily  so.  Here 
arises  the  extreme  difficulty  of  fixing  the  role  of  ideas  in 
the  course  of  history.  Fondness  for  institutions  or  the 
pursuit  of  reforms  may  appear  as  independent  and  effi- 
cient causes  in  the  formation  and  preservation  of  the  law; 
on  the  other  hand,  present  or  desired  institutions  are  sim- 
ply the  bodies  of  activity  and  their  role  is  to  provide  aims 
to  human  life, — to  give  man  the  illusion  that  he  does  not 
spend  his  energies  in  vain  and  that  his  work  is  of  some 
use. 

§  3.  The  Human  Will  as  Juridical  Cause.  We  have 
fixed  the  role  of  the  idea  of  purpose, — of  the  aim  desired 
by  the  human  brain.  It  is  only  accidentally  the  cause  of 
the  act  of  will  properly  so  called. 

But  what  influence  has  the  act  of  will  in  itself  (ab- 
stracted from  the  decisive  cause)  upon  juridical  crea- 


§  4  ]      WILL  AS  JURIDICAL  PHENOMENON       35 

tions?  Is  the  law  produced  by  an  effort,  by  a  struggle  of 
man  against  himself  or  others,  and  is  its  progress  the  re- 
ward of  this  struggle?  Savigny  prefers  to  consider  the 
law  as  developing  from  tendencies  natural  to  man,  har- 
monizing itself  with  the  environment  which  produces  it 
as  easily  as  the  tree  flowers.  Will,  conscious  effort  and 
struggle,  is,  on  the  contrary,  for  Jhering  the  generating 
fact,  which  has  extracted,  from  a  very  meagre  psychol- 
ogy, varied  institutions  capable,  in  their  turn,  of  enrich- 
ing the  human  brain.  Both  of  these  conceptions  are  pos- 
sible; they  are  even  simultaneously  so. 

What  appears  more  doubtful  is  that  every  juridical 
conception,  at  every  epoch,  has  required  the  same  degree 
of  tension  of  the  human  will.  There  are  some  branches 
of  law  which  have  flowered  of  themselves;  the  only 
trouble  the  legislator  has  had  is  to  gather  the  blossoms. 
There  is,  on  the  contrary,  some  progress  which  has  long 
been  wished  and  passionately  sought  and  whose  realiza- 
tion has  been  possible  thanks  only  to  violent  efforts  on 
the  part  of  legislators  and  private  individuals.  Savigny 
and  Jhering  are  rather  the  two  poles  of  the  same  psycho- 
logical truth. 

It  appears  to  me  probable  that  it  is  only  a  question  of 
epoch.  Never  was  the  formation  of  the  law  entirely  un- 
conscious, never  was  it  entirely  voluntary.  I  believe  that 
there  may  exist,  besides,  phenomena  of  juridical  creation 
which  are  concomitant  with  no  act  of  will.  Discussions  of 
doctrines  are  of  this  nature.  But  more  often  legislator, 
judge,  and  litigants,  in  bringing  about  the  birth  or  the  ex- 
tension of  law,  will  something  which  they  have  in  mind 
very  definitely.  But  what  do  they  will?  Why  do  they 
will  it  ?  And  does  their  act  of  will  accord  with  the  future 
of  the  Law? 

§  4.  The  Will  as  Juridical  Phenomenon  or  Epiphenome- 
non.  It  happens  continually  in  life  that  we  deceive  our- 
selves as  to  the  real  cause  of  our  actions.  We  attribute 


36  HUMAN    TELEOLOGY  [CH.II 

too  large  a  part  to  our  personal  initiative,  when,  in  real- 
ity, we  are  doing  nothing  but  unconsciously  obeying 
others.  No  doubt  our  actions  are  preceded  by  an  act  of 
will.  In  the  domain  of  psychology  also  "coacta  voluntas 
est  voluntas."  But  if,  being  given  our  situation,  we  could 
scarcely  will  anything  but  what  we  do  will,  this  phenom- 
enon, so  important  for  our  conscience,  may  be  neglected 
in  reality.  Causes  may  be  linked  together  without  taking 
any  account  of  our  act  of  determination  which  we  believe 
decisive  but  which  simply  constitutes  an  epiphenomenon. 

In  the  creation  of  the  law,  the  power  of  the  will  may 
also  be  modest.  The  legislator  and  judge  believe  that 
they  decide;  in  fact,  they  are,  perhaps,  impelled  by  out- 
side forces  of  a  moral  or  physical  nature.  No  doubt  they 
say  "we  will";  and  they  do  "will"  effectively;  but  they 
will,  perhaps,  what  is  decided  elsewhere,  what  they  could 
not  prevent.  The  juridical  will  which  attends  the  birth 
of  the  law,  would  then  be  a  simple  epiphenomenon  incap- 
able of  explaining  anything.  It  is  doubtless  by  a  reflec- 
tion of  this  kind  that  Jhering,  after  having  exaggerated 
the  role  of  the  human  will,  neglects  it  entirely  in  his  last 
works. 

In  order  to  have  the  right  to  conceive  of  juridical  evo- 
lution aside  from  every  voluntary  act,  two  things  would 
have  to  be  proved:  first,  that  every  act  of  the  human 
will  is  not  only  determined,  but  that  we  have  the  means 
of  explaining  it  entirely  by  a  certain  number  of  causes; 
second,  that  man  always  obeys  external  forces,  or  cer- 
tain moral  impulses,  and  that  we  can  calculate  what  is 
necessary  in  each  case  to  clinch  his  decision.  Then  we 
might  neglect  the  human  will. 

But  it  is  certain  that  we  do  not  know  exactly  what 
passes  in  a  human  brain  at  the  moment  when  it  takes 
part  with  or  against  any  specified  institution.  Even  if 
we  knew  all  of  a  person's  sentiments,  we  should  not  then 
understand  why  some  have  triumphed  over  others.  The 


§5]  HETEROGENEITY    OF    ENDS  37 

expression  "will"  condenses  these  multiple  enigmas. 
Moreover,  while  admitting  that  the  will  is  based  upon 
the  total  number  of  determinating  causes,  it  lives  by 
their  effects.  To  decide  is  to  annul  certain  forces  to  the 
advantage  of  certain  others ;  it  is  not  to  give  the  resultant 
of  all  the  forces  in  sight.  That  is  still  truer  juridically 
than  psychologically.  Generally,  the  legislator  (and  es- 
pecially the  judge)  has  only  the  choice  between  two  solu- 
tions, and,  between  tendencies  which  are  directly  opposed, 
a  compromise  is  impossible.  The  act  of  the  juridical  will 
is,  therefore,  in  general  casuality,  a  new  phenomenon  of 
the  highest  importance. 

The  will  interrupts  universal  causation,  not  positively, 
but  negatively.  It  has  not  created  what  it  chooses,  but 
it  destroys  what  it  does  not  choose.  In  physics,  con- 
trary laws  combine ;  when  the  wind  carries  away  a  feather, 
it  in  no  wise  diminishes  the  power  of  the  earth's  attrac- 
tion. In  the  moral  world,  when  the  conqueror  places  his 
foot  upon  the  vanquished,  of  the  two  rivals  whose  force 
was  nearly  equal,  one  remains  all  powerful,  the  other  is 
crushed  forever. 

§  5.  Heterogeneity  of  Ends.  We  are  still  far  from  tele- 
ology. We  admit  that  man  intervenes  in  the  creation  of 
the  law  and  that  his  will  has  considerable  influence.  But 
whether  that  influence  is  all  powerful,  whether  it  is  in 
accordance  with  his  foresight  and  desires,  is  another  ques- 
tion. In  order  to  direct  consciously  his  own  destiny,  man 
would  have  to  understand  the  functions  of  the  law  before 
realizing  them,  and  to  realize  them  as  he  conceives  them. 
If  there  is  not  this  agreement  between  his  foresight  and 
the  results,  there  is  not  an  end,  it  is  no  teleology.  If  the 
goal  is  not  decided  upon  before  the  departure,  there  is 
no  longer  a  goal,  but  a  limit,  a  point  of  arrival.  The  sub- 
tle work  of  Jhering,  "Der  Zweck  im  Recht,"  exhibits  the 
tremendous  fault  of  continually  confusing  the  end  and 
the  function.  There  is  a  final  cause  when  we  realize  our 


38  HUMAN    TELEOLOGY  [CH.  II 

desires  of  former  times,  and  not  when  we  are  their  dupe, 
and  when  we  should  not  be  doing  what  we  are  doing  if 
we  look  into  the  future. 

No  doubt,  the  legislator  makes  laws  because  he  believes 
them  useful.  Will  they  really  have  the  use  he  attributes 
to  them,  and  will  they  not  have  others?  The  experience 
of  history  shows  that  if  we  try  to  reason  from  present 
functions  to  past  intentions,  we  are  almost  certainly  mis- 
taken, and  as  far  as  the  laws  which  we  see  made  are  con- 
cerned, it  is  easily  shown  that  they  seldom  bring  about 
the  results  which  were  expected  from  them  when  they 
were  being  drawn  up. 

A  scientific  form  has  been  given  to  this  phenomenon  by 
calling  it  the  "heterogeneity  of  ends."  An  institution 
but  seldom  performs  its  first  function,  that  for  which  it 
was  created.  It  serves,  on  the  contrary,  many  other  pur- 
poses which  were  not  suspected  in  the  beginning  and  are 
sometimes  never  suspected.  So  true  is  this  that  a  proof 
of  child-like  simplicity  is  shown  by  those  legislators  who 
believe  in  the  omnipotence  of  their  will,  by  those  inter- 
preters of  the  law  who  think  that  they  can  attain  insight 
into  the  use  of  laws  by  examining  into  the  labors  con- 
nected with  their  preparation,  and  finally,  by  those  very 
numerous  critics  who  reason  upon  juridical  functions  as 
if  they  were  obvious. 

Where  can  this  disagreement  between  the  end  willed 
and  the  real  function  spring  from  ?  Is  it  equally  unavoid- 
able in  every  epoch  of  civilization  and  in  every  juridical 
field? 

The  declaration  of  will  no  more  produces  an  immedi- 
ate effect  in  the  law  than  it  does  in  the  physical  world. 
In  order  to  change  the  present,  a  certain  opposition,  a  re- 
sistance, must  be  overcome.  Direct  and  violent  action 
towards  the  desired  aim  will  not  always  have  the  best 
result.  In  the  first  place,  we  must  understand  the  nature 
and  strength  of  the  resistance  to  be  overcome,  in  order  to 


§5]  HETEROGENEITY   OF   ENDS  39 

know  how  it  can  be  overcome.  Thus  the  legislator  often 
fails  in  his  purpose  through  ignorance  of  the  proper 
means  to  employ  to  gain  it.  Without  a  certain  amount 
of  knowledge  and  resourcefulness,  one  cannot  hope  to 
realize  the  juridical  aim.  But  there  is  here  an  accidental 
danger  which  may  reasonably  be  avoided  when  knowl- 
edge arrives  at  a  certain  stage. 

There  are  other  causes  of  disillusion  for  the  optimistic 
legislator.  It  is  very  seldom  that  the  effects  of  laws  are 
simple.  Generally,  they  are  exceedingly  complex.  When 
the  legislator  succeeds  in  producing  the  desired  result,  he 
produces  at  the  same  time  a  great  number  of  other  con- 
sequences which  were  never  willed  and  which,  in  reality, 
may  be  more  important  than  the  result  sought.  Thus 
the  strictness  with  which  the  French  Civil  Code  has  en- 
forced equal  division  of  property  has  indeed  somewhat 
equalized  fortunes  as  was  desired;  but  its  effects  upon  the 
parcelling  of  lands,  and  upon  the  movement  of  the  popu- 
lation, were  not  willed,  and  are,  perhaps,  more  consider- 
able. 

This  second  danger  can  be  avoided  only  by  experience, 

—  a  very  long  experience,  to  be  sure.    It  is  not,  however, 

unreasonable  to  hope  that,  after  centuries  of  groping,  the 

legislator  will  know  how  to  obtain  a  willed  result  and  to 

avoid  effects  not  willed. 

But  whatever  may  be  the  knowledge  and  experience  of 
the  legislator,  supposing  it  to  be  complete,  he  will  always 
fall  short  of  his  mark.  No  doubt,  one  may  manage  to 
calculate  the  future  for  a  reasonable  length  of  time;  man 
might  realize  his  will  in  the  law  if  he  could  take  into  ac- 
count all  the  circumstances  of  the  present.  But  the  per- 
petual flux  and  flow  of  things  does  not  permit  him  to 
foresee  how  the  institution  which  he  has  created,  will  bear 
itself  in  the  juridical  environment  of  tomorrow.  For  in- 
stance, the  law  which  yesterday  favored  commerce  may  be 
a  hindrance  to  it  today;  that  which  tended  to  strengthen 


40 

the  family  may  become  prejudicial  to  it  if  customs 
have  changed.  In  political  institutions,  we  see  organs  of 
moderation  become  those  of  revolution,  and  vice  versa. 
For  each  century  and  each  task,  the  function  changes 
entirely  of  itself,  without  the  intervention  of  a  direct- 
ing will. 

More  quickly  —  very  much  more  quickly  —  than  the 
function  of  the  law,  the  directing  will — the  political  ideal 
—  is  changed,  so  that  supposing  the  laws  table,  there 
could  be  only  a  momentary  agreement  between  the  hu- 
man will  and  the  function  of  the  law.  "We  never  go 
down  into  the  same  river  twice,"  the  Greeks  used  to  say. 
We  never  have  the  same  idea  twice ;  we  do  not  will  the 
same  thing  twice.  The  descendants  can  hardly  com- 
pletely reestablish  the  ideals  of  their  ancestors.  The 
original  purpose  of  the  law  is  unknown. 

Is  this  equivalent  to  saying  that  the  heterogeneity  of 
ends  is  a  (natural)  law,  an  inevitable  result  which  has  al- 
ways been  and  will  always  be  produced  with  the  same  in- 
tensity? It  is  certain  at  the  outset  that  this  is  not  a  law, 
but  the  establishment  of  the  negative  phenomenon  that 
the  human  will  is  not  omnipotent  in  the  creation  of  the 
law.  This  phenomenon  is,  moreover,  not  general;  it  is 
not  always  produced  to  the  same  degree  in  every  epoch 
and  in  all  branches  of  the  law.  Those  who  affirm  most 
vigorously  that  prevision  of  its  functions  has  never  been 
the  cause  of  an  institution,  do  not  any  the  less  propose 
reforms  which  would  be  inconceivable  if  man  were  in  a 
position  not  to  foresee  functions  to  any  degree. 

Likewise,  in  regard  to  the  method  of  the  history  of  law, 
we  draw,  from  this  phenomenon  of  the  heterogeneity  of 
ends,  some  conclusions  which  are  diametrically  opposed 
to  those  which  prevail  at  the  present  time.  It  has  been 
said  that  the  law  ought  to  be  studied  by  epochs,  for  the 
functions  of  institutions  vary  according  to  the  epoch. 
And  it  is  precisely  because  these  functions  do  vary  that 


§6]  CONCLUSION  41 

we  prefer  the  vertical  method  (by  means  of  an  institu- 
tion) which  throws  these  variations  into  relief.  For  the 
heterogeneity  of  ends  is  not  a  principle  which  we  estab- 
lish once  for  all  and  then  no  longer  take  into  account.  It 
is,  on  the  contrary,  one  of  the  chief  objects  of  our  research. 
Knowing  as  yet  very  little  in  regard  to  its  true  nature 
and  importance,  we  try  to  follow  functions  in  their  varia- 
tions. Every  time  that  the  human  will  has  tried  to  seize 
the  management  of  the  law,  it  is  important  for  us  to  know 
to  what  extent  it  has  succeeded,  and  to  study  how  the 
law  has  slipped  away,  to  a  greater  or  less  extent,  from  its 
grasp. 

§  6.  Conclusion.  The  human  will  is  a  juridical  cause, 
but  it  is  nothing  more  than  a  cause.  It  urges  the  law  to 
the  right  or  left,  it  knows  not  whither.  Must  we  com- 
pare it  to  Luther's  tipsy  peasant,  who  cannot  stay  on  his 
donkey,  but  falls  sometimes  to  one  side,  sometimes  to  the 
other?  This  would,  perhaps,  be  giving  it  too  much 
honor,  for  the  peasant  knows  that  he  has  a  road  and 
wishes  to  follow  it,  although  he  cannot.  The  juridical 
will  has  no  road  to  follow.  It  goes,  as  a  poet  says,  "Ou 
va  toute  chose,  ou  va  la  feuille  de  rose  et  la  feuille  de 
laurier." 1 

But  the  nature  of  the  human  will  cannot  be  despised; 
it  is  more  potent  so  far  as  its  force  is  concerned.  It  is 
conscious  of  its  strength,  but  unconscious  of  its  aim  and 
the  result  of  its  efforts.  If  the  hopes  of  the  legislator  and 
the  results  which  he  obtains  be  compared,  sorrowful  re- 
flections might  be  made  upon  the  subject.  But  the  legis- 
lator is  not  bound  to  go  and  sign  the  death  certificates  of 
the  patients  whose  cure  he  promised,  —  and  that  costs 
some  illusion  in  his  reckoning. 

The  history  of  the  law  is  obliged  to  confess  this  cen- 
tury-old powerlessness  of  the  most  profound  thinkers  and 

'"Where  goes  everything,  where  goe0  {he  leaf  of  the  laurel  and  the  leaf  of  the 
rose." 


42  HUMAN   TELEOLOGY  [CH.  II 

the  most  energetic  wills.    The  law  is  not  the  human  will 
realized. 

BIBLIOGRAPHY 

FouiLLEX  L'eVolutionnisme  des  ide'es-forces,  La  psychologic  des 
idees-forces;  JHERING,  Der  Zweck  im  Recht  (1884-1885)  (Vol.  I 
is  translated  in  this  Series,  vol.  5);  BOUGLE,  Les  sciences  sociales  en 
Allemagne  (1896);  DAHN,  Die  Vernunft  im  Recht,  Grundlagen  der 
Rechtsphilosophie  (1879);  RICHARD,  Les  obscu  it£s  de  la  notion 
sociologique  de  1'histoire,  in  Revue  philosophiqu'e,  XXX,  12. 

STAMMLER,  Die  Lehre  von  dem  richtigen  Recht,  Abschluss  II  and 
III,  pp.  607  seq.;  WUNDT,  Ethik,  bk.  I,  chap.  Ill;  W.  DILTHEY, 
Einleitung  in  die  Geisteswissenschaften,  Versuch  einer  Grundlegung 
fur  das  S  udium  der  Gesellschaft  und  der  Geschichte  (Leipsic,  1889) ; 
VON  WEISE,  Zur  Grundlegung  der  Gese  Ischaftslehre  (Jena,  1906). 

EDWARD  SPRANGER,  Die  Grundlage  der  Geschichtswissenschaft 
(Berlin,  1905;  GOLDSCHEID,  Grundlinien  zu  einer  Kritik  der  Willens- 
kraft  (Wien,  1905),  p.  6;  RUYSSEN,  Essai  sur  1'evolution  psycholo- 
gique  du  jugement  (Paris,  1904);  BROCHARD,  De  1'erreur  (Paris, 
1897),  p.  149;  WORMS,  Philosophic  des  sciences  sociales,  bk.  I,  pp. 
99,  104;  DURKHEIM,  Regies  de  la  methode  sociologique,  pp.  Ill, 
113;  GOMPERZ,  Greek  Thinkers  (Griechische  Denker),  (French 
trans,  by  Reymond),  bk.  II. 


BOOK    II 
CAUSALITY   IN   THE   HISTORY    OF    LAW 


CHAPTER  I 
THE  IDEA  OF  CAUSE 

51.  INTRODUCTION.— 12.  THE  OBJECTIVE  AND  THE  SUBJEC- 
TIVE CAUSE.  — §3.  THE  PROBLEMS  OF  OBJECTIVE  CAUSE:  (1)  DE- 
GREE OF  IDENTITY  BETWEEN  CAUSE  AND  EFFECT;  (2)  DIFFI- 
CULTY OF  FORMING  CAUSAL  SERIES;  (3)  INDIVIDUAL  CHARACTER 
OF  THE  OBJECTIVE  CAUSE.  — §4.  THE  SUBJECTIVE  CAUSE:  (1) 
UTILIZATION  BY  MAN  OF  CAUSAL  PRINCIPLE;  (2)  MAN'S  TREAT- 
MENT OF  CAUSES.— §5.  CAUSALITY  AND  CLASSIFICATION:  (1) 
COMMON  MISTAKES  IN  THE  APPLICATION  OF  CLASSIFICATION 
TO  CAUSAL  INTERPRETATION;  (2)  METHOD  ADVISABLE  FOR 
THE  HISTORIAN.— §6.  CAUSALITY  AND  CHRONOLOGY.— §  7.  HIS- 
TORY AND  CAUSALITY:  (1)  INDIVIDUALIZATION  AND  GENERAL- 
IZATION OF  CAUSES;  (2)  OBJECTIVE  AND  SUBJECTIVE  CHARACTER 
OF  TWO  OPERATIONS.  — J  8.  THE  CAUSE  AND  THE  ORIGIN  IN  THE 
HISTORY  OF  INSTITUTIONS:  (1)  INVESTIGATION  OF  INDIVIDUAL 
CAUSES  OF  JURIDICAL  FACTS,  OBJECT  OF  LEGAL  HISTORIAN;  (2) 
NECESSITY  OF  DISTINCTION  THROUGH  ANALYSIS  BETWEEN  THE 
OBJECTIVE  AND  THE  SUBJECTIVE  CAUSE. 

§  1.  Introduction.  To  those  who, like  ourselves, maintain 
that  the  object  of  the  history  of  law  is  to  study  the  causes 
and  effects  of  institutions  and  laws,  a  very  embarrassing 
question  may  be  propounded,  i.e.,  What  do  the  words 
"cause"  and  "effect"  signify?  Can  we  define  them,  state 
accurately  their  nature  and  their  rdle,  and  utilize  them  in 
practice  as  well  as  in  theory  ?  If  our  ideas  in  this  matter 
are  confused  or  open  to  discussion,  will  there  not  be  a 
fine  opportunity  for  our  opponents  to  attack  us  and  to 
claim  that  our  work  is  vitiated  in  its  principles?  In 
every-day  life,  it  is  often  excusable  to  proceed  at  random; 
but  science  lives  in  precise  ideas,  in  clear  conceptions. 
Can  we  work  by  means  of  principles  which  we  do  not 
entirely  understand? 

45 


46          CAUSALITY  IN  LEGAL  HISTORY       [CH.  I 

Cause  is,  however,  still  an  obscure  idea.  Very  far  from 
being  simple  and  accessible  to  all  brains  from  birth,  it 
is  a  principle  of  experience  that  may  be  looked  upon  from 
multitudinous  points  of  view,  one  of  which  would  in  itself 
be  sufficient  to  form  a  science  whose  goal  generations  of 
workers  would  not  reach.  If  it  had  been  necessary  to 
wait  until  a  complete  and  incontestable  doctrine  of  caus- 
ality was  elaborated  before  making  use  of  cause  as  an 
instrument  of  research,  the  greater  part  of  the  sciences 
would  still  be  in  a  very  rudimentary  state.  Experience 
has  shown  thousands  of  times  that  we  know,  by  instinct, 
how  to  handle  this  instrument  whose  mechanism  is  not 
entirely  known  to  us.  It  is,  on  the  other  hand,  a  tool 
which  may  be  refined  by  usage.  The  study  of  cause  in 
the  history  of  law  is  valuable  for  history  and  for  law. 
But  it  may  also  make  causation  itself  appear  under  a 
new  light. 

§  2.  The  Objective  and  the  Subjective  Cause.  All  matter, 
all  movement  of  matter,  all  sensation  and  thought  are 
products.  Other  things,  physical  or  moral  forces,  have 
preceded  them  and  caused  them  to  be  produced.  Every 
thing  that  exists  draws  from  a  past,  near  or  distant,  the 
reasons  of  its  existence.  Nothing  comes  from  nothing; 
no  being  without  ancestry.  Such  is  the  principle  of 
causality  in  its  essence.  It  is  objective  in  its  nature. 
Even  were  there  no  intelligence  to  understand  it,  its  role 
in  the  creation  of  all  things  would  not  be  diminished 
thereby. 

But  at  a  certain  stage  in  its  evolution,  the  human  brain 
came  in  contact  with  this  natural  verity,  understood  it, 
in  so  far  as  it  was  able  to  understand  it,  and  made  from  it 
the  idea  of  cause.  Man  such  as  he  is  can  no  longer  do 
without  such  a  conception  to  direct  him  in  his  scientific 
and  practical  life.  But  neither  can  he  grasp  the  real  cause 
in  its  entirety.  He  is  obliged  to  neglect  certain  truths 
in  order  to  concentrate  his  attention  and  his  memory 


§2]     OBJECTIVE  AND  SUBJECTIVE  CAUSE       47 

upon  certain  others,  and  he  has  —  perhaps  by  pure  chance 
— the  power  of  neglecting  a  large  part  of  the  true,  with- 
out compromising  thereby  the  accuracy  of  his  partial 
observations.  He  cannot  see  the  whole;  he  understands 
at  best  its  details.  He  cannot  consider  the  absolute,  but 
that  very  imperfection  permits  him  to  study  all  the  better 
the  relative,  which  is,  perhaps,  a  more  subtle  element  of 
the  truth,  and  is,  in  every  instance,  undoubtedly  far  more 
useful. 

Thus  science  employs  subjective  causality  in  the  sense 
that  it  takes  a  full  account  of  its  defects.  It  realizes  that 
it  is  made  according  to  the  measure  of  human  intelligence 
and  cannot  therefore  agree  perfectly  with  reality.  Pure 
speculation  can  furnish  us  with  ideas  incontestably  more 
objective,  but  far  inferior  as  instruments  of  labor. 

There  exists  then  an  objective  causality  and  a  sub- 
jective causality;  objective  problems  of  causality, — ef- 
forts to  understand  better  the  real  movements  of  material 
and  living  things,  without  caring  to  increase  the  sum  of 
our  concrete  knowledge;  and  problems  of  subjective 
causality,  ingenious  combinations  to  make  the  best  of 
materials  that  our  intelligence  cannot  employ  in  their 
totality. 

Every  science  has  its  own  methods  of  investigating 
causality;  chemistry,  physics,  medicine,  and  mechanics 
each  has  a  special  conception  of  cause  and  not  one  is 
absolutely  objective.  We  must  not,  except  very  cau- 
tiously, pass  from  one  to  another,  with  the  same  logic. 

In  the  moral  and  psychological  sciences,  the  idea  of 
cause  becomes  so  subjective  and  specialized  that  reality 
seems  to  have  been  abandoned  for  a  world  of  fantastic 
abstraction. 

The  Schoolmen  were  always  ready  to  argue  upon  the 
following  subject:  When  one  succeeded  in  gaining  the 
goodwill,  the  affection,  or  the  love  of  another  by  bestow- 
ing gifts  upon  him,  what  is  the  true  cause  of  the  senti- 


48         CAUSALITY   IN    LEGAL   HISTORY      [Cn.  1 

ment?  Without  the  gifts,  the  sentiments  would  never 
have  arisen,  and  yet  they  cannot  be  the  cause  of  them, 
for  self-interest  cannot  be  the  basis  of  a  truly  sincere 
bond  of  sympathy.  Today  one  would  be  tempted  to  see 
in  such  a  discussion  a  series  of  plays  upon  words.  This 
would  be  a  mistake.  It  is  a  question  of  a  problem  in 
psychological  causality,  the  positive  solution  of  which 
would  not  be  without  interest. 

Juridical  science  has  enough  causal  ideas  which  belong 
to  it.  The  cause  of  a  damage  is  more  objective  and  that 
of  a  contract  more  specialized.  Even  when  texts  enum- 
erate the  causes  of  divorce,  of  infamy,  of  disinheritance, 
etc.  —  the  connection  with  metaphysical  causality  is  not 
completely  broken.  The  law  eventually  gives  to  certain 
facts  a  causal  power  over  concrete  reality. 

§  3.  Problems  of  the  Objective  Cause.  These  questions 
appear  at  first  sight,  inopportune.  Pure  philosophy, 
metaphysics,  which  ordinarily  is  not  averse  to  walking  in 
the  clouds,  has  not  believed  that  too  much  effort  ought 
to  be  devoted  to  understanding  more  thoroughly  than  is 
useful  to  ordinary  logic,  the  nature  of  cause.  The  em- 
pirical idea,  in  its  simplest  form,  sufficed  a  long  time  for 
the  progress  of  the  physical  and  the  natural  sciences. 
Scholars  could  ask  no  aid  on  this  point  from  the  phi- 
losophers, and  the  latter  allowed  themselves  to  be  fasci- 
nated by  a  single  question,  the  least  important,  and  one 
which,  in  any  case,  they  were  in  no  position  to  answer, 
for  it  is  purely  historical:  how  did  the  idea  of  cause  be- 
come introduced  into  the  human  brain  ? 

1:  DEGREE  OF  IDENTITY  BETWEEN  CAUSE  AND  EF- 
FECT. From  the  Middle  Ages  down  to  quite  recent  times, 
problems  of  objective  causality  have  been  seldom  pro- 
posed, at  all  events,  seldom  thoroughly  investigated. 
The  one  to  which  classic  philosophy  most  often  alludes 
is  the  degree  of  identity  between  the  cause-phenomenon 
and  the  effect-phenomenon.  -In  reality,  every  new  fact 


§3]       PROBLEMS  OP  OBJECTIVE   CAUSE         49 

results  from  a  combination  of  several  old  facts ;  it  is  certain 
that  each  has  its  part  in  causality  although  for  us  some 
of  them  may  be  negligible.  The  qualities  and  the  propor- 
tion of  these  different  antecedents  and  the  process  of  com- 
bination which  unites  them  should  contain  the  effect 
and  become  identical  with  it.  The  Schoolmen  used  to 
set  forth  this  idea  by  distinguishing  three  kinds  of  cause: 
"formalis,  materialis,  et  efficiens."  Thus  the  cause  of 
a  statue  is  threefold;  a  material  is  necessary,  e.g., 
marble  or  bronze;  a  certain  capacity,  some  talent  and 
the  intention  to  work  on  the  part  of  the  sculptor;  and 
finally,  effective  labor,  which  incorporates  in  the  material 
the  thought  of  the  artist.  This  analysis  of  the  causal 
antecedent  was  presented  more  or  less  successfully  and 
more  or  less  profitably  by  the  thinkers  of  the  Middle  Ages. 
It  has  subsisted  in  traditional  logic  as  a  didactic  and  un- 
interesting division.  Bacon  began  to  abandon  it:  he  par- 
ticularly recommended  to  the  sciences  the  "causa 
efficiens."  However,  the  "causa  formalis"  did  not 
seem  to  him  valueless.  It  absorbed  much  of  his  study, 
perhaps  too  much.  But  he  removed  it  from  causality, 
and  carried  it  into  the  realm  of  metaphysics.  The  formal 
cause  becomes  the  form,  afterwards  the  substance,  and 
ends  by  eluding  us  altogether. 

The  three-fold  division  of  the  cause  does  not  appear  to 
me  devoid  of  interest.  Applied  to  juridical  life,  it  would 
give  as  material,  the  law.  Parties  have  to  take  therefrom 
the  materials  of  future  acts.  The  psychological  state  of 
the  persons  wishing  to  make  the  contract  would  be  the 
second  element  of  the  cause.  Finally,  the  action  of  one 
upon  the  other  when  it  issues  directly  from  the  parties 
or  from  an  intermediary,  corresponds  to  the  efficient 
cause.  Evidently,  this  is  a  rather  naive  approximation 
to  reality.  It  cannot  be  denied  that  it  is  a  purely  objective 
effort.  It  seeks  to  discover  in  the  past  reality,  the  present 
reality  in  as  complete  a  form  as  possible 


60          CAUSALITY  IN  LEGAL  HISTORY        [CH.I 

The  method  of  the  Schoolmen  is  to  try  and  catch 
reality  in  a  snare  which  has  been  woven  by  logic.  But 
the  mesh  is  never  close  enough  and  truth  can  escape.  His 
conception  of  causality  is  evidently  rather  coarse.  It  is 
perhaps  impossible  to  group  in  three  classes  the  elements 
of  a  real  cause;  even  if  this  could  be  done,  these  formulas 
would  contain  ideas  of  so  varied  a  nature  that  they  would 
tend  rather  to  conceal  reality  than  to  make  it  understood. 
Not  three,  but  a  hundred,  a  thousand  causal  categories 
might  be  distinguished  without  exhausting  reality.  The 
number  of  small  causes  which  are  grouped  together  to 
form  even  small  facts  is  infinite.  However,  we  must  not 
for  this  reason  recognize  any  the  less  the  merits  of  the 
thinkers  of  the  Middle  Ages.  They  saw  one  thing  rather 
difficult  to  see:  i.e.,  the  effect  contains  all  the  elements  of 
the  cause-phenomenon  and  the  cause  is  completely  known 
by  all  the  elements  of  the  effect-phenomenon.  All  the 
molecules  and  all  the  forces  of  the  one  should  be  found 
identical  in  the  other,  and  they  are  all  necessary.  Then 
the  cause  is  identical  with  the  effect.  They  understood 
that  this  truth  is  objective.  The  human  mind  —  even  the 
most  scientific — sees  a  world  of  metamorphoses,  with  causes 
and  effects  following  but  not  resembling  one  another. 
Even  when  we  perceive  the  "raisons  d'etre,"  we  do  not 
see  the  resemblances.  We  understand  very  well  how  an 
explosion  destroys  a  house ;  but  that  the  catastrophe  does 
not  change  in  any  way  the  former  state  of  things,  our 
reason  refuses  to  comprehend.  But  it  is  true,  neverthe- 
less, from  a  certain  point  of  view. 

On  the  other  hand,  when  modern  philosophy  tells  us 
that  the  relation  of  causality  tends  to  become  a  relation 
of  identity,  it  reaches  that  conclusion  by  analyzing  our 
psychological  states  and  it  allows  the  existence  of  a  certain 
confusion.  If  we  are  more  and  more  inclined  to  admit 
that  identity  and  causality  blend,  it  is  through  reflection 
and  through  observation  of  reality  and  not  through  any 


§3]        PROBLEMS  QF  OBJECTIVE  CAUSE          51 

intellectual  need.  As  far  as  our  intelligence  is  concerned, 
the  two  terms  could  be  separated  indefinitely.  No 
science  has  it  as  its  aim  to  follow  up  this  identification. 

2:  DIFFICULTY  OF  FORMING  CAUSAL  SERIES.  When  we 
speak  of  cause  and  effect,  we  seem  to  be  looking  upon 
phenomena  as  constituting  families  in  which  the  son  recog- 
nizes his  father  and  mother  and  knows  who  is  related  to 
him  and  who  is  not. 

Now  it  is  very  certain  that  the  number  of  phenomena 
which  have  contributed  even  directly  to  the  production 
of  any  single  thing  is  greater  than  we  can  imagine.  We 
are  unable  to  reestablish  cause  in  its  entirety  and  we  are 
aware  of  this  limitation.  But  we  may  go  farther  and 
believe  that  the  entire  universe  is  conjoined,  that  every- 
thing is  in  everything;  that  there  is  no  filiation  of 
phenomena,  but  innumerable  attractive  or  repulsive  in- 
fluences, coming  from  every  direction,  and  that  it  is  the 
resultant  of  these  that  we  observe. 

If  I  place  my  pen-holder  upon  the  table,  that  act 
scarcely  seems  to  me  to  have  any  consequence.  It  has, 
nevertheless;  it  occasions  a  shock,  a  vibration  of  the  air. 
Is  it  possible  to  fix  the  limits  of  such  insignificant  effects  ? 
Must  they  be  confined  to  the  table,  the  room,  the  town, 
the  country,  the  terrestrial  globe?  Is  not  the  whole 
universe  affected  by  them  to  an  extent  unimaginably 
minute,  but  very  real  nevertheless?  Does  not  that 
movement  of  which  I  perceive  only  the  physical  effect, 
the  disturbance  of  the  air,  exercise  an  influence,  infini- 
tesimal of  course,  upon  living  beings,  upon  the  actions 
and  thoughts  of  individuals  at  infinite  distances?  By  a 
confusion  of  the  objective  and  subjective  cause  we  say 
that  it  is  legitimate  to  neglect  the  inappreciable.  Yes, 
in  practice,  but  not  in  theory.  If  the  infinitesimally 
small  things  of  the  universe  have  a  determinable  zone  of 
influence  and  are  not  conjoined,  it  is  probable  that  this  is 
proportionately  the  same  with  great  things.  It  will 


52          CAUSALITY  IN  LEGAL  HISTORY       [Cn.I 

therefore  be  allowable  to  establish  classes  of  facts  or  of 
things  which  by  nature  or  distance  have  no  relation  with 
others, — form  independent  series.  If,  on  the  other  hand, 
an  infinitesimal  and  inappreciable  solidarity  binds  to- 
gether the  infinitesimally  small  things  of  the  universe,  it 
is  necessary,  a  fortiori,  to  presuppose  the  existence  of  an 
appreciable  solidarity  between  phenomena  of  a  higher 
order,  and  we  shall  conclude  from  this  that  a  classification 
of  causes  is  a  subjective  necessity,  but  corresponds  to 
nothing  real. 

It  does  not  seem  to  me  that  there  is  any  way  whatso- 
ever of  solving  the  problem.  We  must  therefore  be  ex- 
tremely cautious  in  creating  causal  series,  when  they  are 
practically  necessary. 

3:  INDIVIDUAL  CHARACTER  OF  THE  OBJECTIVE  CAUSE. 
Objective  causality  is  essentially  individual  in  all  of  its 
elements.  It  has  recently  been  maintained  that  the  in- 
dividual has  no  cause.  It  may  be  asserted,  on  the  con- 
trary, that  the  individual  alone  has  a  cause  in  so  far  as  it 
is  individual.  There  is  and  there  can  only  be  in  the 
universe  an  infinite  number  of  particular  phenomena,  but 
no  general  phenomenon.  If  we  have  the  advantage  of 
being  able  to  unite  in  a  single  conception  an  innumerable 
number  of  analogous  beings,  we  must  not  forget  that  by 
that  very  process  we  renounce  a  more  intimate  knowledge 
of  these  beings.  As  far  as  I  am  concerned,  the  waters 
of  the  Atlantic,  of  the  Pacific,  or  of  the  Mediterranean  are 
all  the  same.  Provided  they  are  capable  of  carrying 
steamships  and  of  allowing  fish  to  live  in  them,  I  am  not 
anxious  to  penetrate  further  into  their  intimate  compo- 
sition. But  in  reality,  each  molecule,  each  atom,  each 
living  cell  has  its  characteristics,  its  destiny  and  its  his- 
tory. And  each  of  these  small  destinies  plays  its  part  in 
causality.  However  small  the  particles  into  which  we 
decompose  matter,  however  much  alike  may  be  their 
elements,  each  of  them  has  none  the  less  its  own  indi- 


§4]      PROBLEMS  OF  SUBJECTIVE  CAUSE         53 

viduality.  If  we  were  able  to  mark  with  a  blue  or  red 
cross,  as  we  do  sheep,  a  certain  atom  of  oxygen  and  thus 
follow  it  in  all  the  combinations  into  which  natural  or 
artificial  forces  might  incorporate  it,  upon  finding,  one 
day,  our  molecule  joined  with  hydrogen  to  form  water, 
the  real  cause  of  this  water  ought  to  indicate  why  our 
molecule  was  found  there  and  not  some  other. 

There  is  nothing  fungible  in  the  universe.  Everything 
is  individual,  everything  individualizes  itself  and  tends  to 
become  individualized.  We  cannot  distinguish  the  in- 
dividuality of  certain  things  which  present  identically 
the  same  interest  and  seem  absolutely  alike.  In  a  flock 
of  sheep  of  the  same  breed,  and  the  same  weight,  each 
unit  appears  devoid  of  any  differentiating  characteristics. 
And  yet,  the  shepherd  recognizes  them  all  without  hesi- 
tation, even  if  there  were  hundreds  of  them,  and  can  de- 
tail at  length  the  peculiarities  of  each. 

If  while  I  was  walking  along  the  street,  a  certain  person 
should  fall  upon  my  head,  I  should  include  in  the  cause 
all  the  circumstances  which  made  that  person  fall,  at  the 
moment  when  I  was  passing  under  the  window.  If,  on 
the  other  hand,  a  bucketful  of  water  fell  on  my  head,  I 
should  try  to  establish  the  cause  by  the  reasons  which 
made  me  pass  at  the  moment  when  the  water  was  being 
thrown  out.  But  the  individuality  of  the  water  which 
was  thrown  out  is  as  real  an  element  as  my  own  indi- 
viduality and  if  it  is  not  taken  into  account,  the  true 
causal  relation  will  not  be  objectively  established. 

§  4.  The  Subjective  Cause.  It  is  evident  that  all  of 
our  conceptions  and  all  of  our  perceptions  are  subjective. 
They  must  have  crossed  our  brains  for  us  to  become  aware 
of  them.  There  are  some  among  them  which  experience 
and  reflection  have  verified  as  conforming  to  reality. 
There  are  others  which  we  know  perfectly  cannot  corre- 
spond exactly  to  anything  real  but  which,  nevertheless, 
give  us  the  best  means  of  understanding  and  of  acting  on 


54          CAUSALITY  IN  LEGAL  HISTORY       [  CH.  I 

the  totality  of  things.  Thus  it  is  with  the  principle  of 
causality. 

How  does  it  happen  that  our  brain  has  found  means, 
theoretically  very  imperfect,  but  practically  very  power- 
ful, of  adapting  ideas  to  things?  This  enigma  is  not  yet 
explained.  But  the  fact  is  certain  that  it  has  been  very 
useful  to  humanity  to  look  at  Nature  through  a  certain 
prism  which  transforms  objects  without  destroying  their 
proportions,  in  such  a  way  that  by  combining  fictions  it 
judges  with  as  much  accuracy  as  if  the  thing  itself  were 
in  its  hands. 

1:  UTILIZATION  BY  MAN  OF  CAUSAL  PRINCIPLE.  Man 
may  utilize  the  abstract  principles  which  are  deduced 
from  things,  as  well  as  the  things  themselves,  for  his  per- 
sonal service.  Just  as  a  horse  can  be  hitched  to  a  carriage, 
or  water  power  accumulated  for  industrial  uses,  so  it  is 
.  equally  possible  to  employ  the  causal  principle  to  pen- 
etrate the  nature  of  things  and  perceive  their  secret 
qualities.  If  we  know  how  a  drink  is  made,  what  liquids 
have  been  mixed  to  form  it,  we  imagine  its  taste  before 
we  put  it  to  our  lips.  If  we  know  the  causes  of  a  sorrow, 
we  understand  the  attitude  and  the  tears  of  the  person 
who  has  been  afflicted  by  it,  and  even  the  pain  which  is 
concealed  from  us.  Accordingly,  the  cause  may  be  ex- 
plicative; it  may,  however,  quite  as  well  not  be  so.  It 
does  not  exist  for  the  purpose  of  explaining  further 
whether  or  not  the  horse  was  created  for  our  use.  Our 
brain  has  the  power  of  making  it  serve  sometimes  in  that 
particular  use;  but  this  power  is  variable.  Sometimes,  by 
no  other  means  than  that  of  cause  and  effect,  we  are  able 
to  dissect  extremely  complex  things  and  to  recognize,  as 
familiar  to  us,  the  minute  elements  which  are  thus  re- 
vealed. On  the  other  hand,  it  very  often  happens  in 
the  moral  as  well  as  in  the  physical  sciences  that 
our  ability  to  explain  phenomena  by  the  cause,  i$ 
absolutely  null. 


§  4  ]       PROBLEMS  OF  SUBJECTIVE  CAUSE        55 

The  human  mind  is  not  satisfied  to  utilize  the  causal 
principle  in  itself  by  observing  the  action  of  phenomena 
upon  one  another,  and  discovering  in  the  product  the 
qualities  of  the  producer.  Logicians  of  the  most  widely 
differing  periods  and  schools  have  combined  it  with  their 
other  processes  of  reasoning  and  have  inserted  it  in 
general  logic. 

Thus  by  a  sort  of  symmetrical  analogy,  it  has  been 
concluded  that  the  same  causes  produce  the  same  effects, 
according  to  the  inverse  and  very  contestable  principle 
that  the  same  effects  are  produced  by  the  same  cause, 
with  which  may  be  practically  compared  the  "cessante 
causa  cessat  effectus."  Now,  practically,  the  same  result 
may  be  obtained  by  very  different  processes.  No  doubt, 
theoretically,  the  process  will  not  be  the  whole  cause,  nor 
the  result  the  whole  effect.  But  if  we  deal  with  absolute 
reality,  the  principle  has  no  longer  any  meaning,  for  there 
are  no  two  effects  which  could  be  the  same.  This  is  not 
saying  that  logicians  have  been  entirely  wrong  upon 
this  point  and  that  their  corollary  is  wholly  false.  The 
same  effects  might  spring  from  the  same  causes  in  an 
imaginary  world  where  integral  causes  and  integral 
effects  could  be  the  same.  Accordingly,  the  more  we  shall 
group  together  the  elements  of  the  cause-phenomenon 
and  of  the  effect-phenomenon  and  the  more  we  shall 
study  them  objectively,  the  more  our  adage  will  approach 
the  truth.  We  shall  thus  be  provided  with  a  criterion 
which  is  not  to  be  disdained. 

The  principle  of  causality  has  very  unfortunately 
served  to  justify  inductive  reasoning  and  to  bestow  upon 
it  its  entire  authority.  Each  of  the  two,  none  the  less, 
has,  and  has  always  had,  its  independent  existence,  and 
its  special  r61e.  In  the  search  for  truth  the  causal  process 
may  also  be  combined  with  induction  and  deduction. 
Hume  gives  us  an  example  of  this :  If  we  discover  a  human 
foot-print  in  the  sand  of  the  seashore,  by  ascending  from 


56          CAUSALITY  IN  LEGAL  HISTORY       [  CH.  I 

the  effect  to  the  cause,  we  can  assert  that  a  man  has 
passed  that  way.  But  as  we  know  by  induction  that  men 
have  two  feet,  it  will  appear  legitimate  for  us  to  descend 
from  the  cause  which  we  have  not  seen,  to  another  effect 
which  we  no  longer  see,  the  second  foot-print,  which  the 
wind  has,  no  doubt,  effaced.  Such  a  logical  operation  is 
not  absolutely  certain;  it  is  worth  only  what  induction 
is  worth  and  could  be  admitted  only  into  sciences  which 
have  very  strict  methods  of  verification. 

2:  MAN'S  TREATMENT  OF  CAUSES.  Man  has  had  the 
happy  privilege  of  believing  that  he  knows  everything 
when  he  knows  almost  nothing,  and  of  using  tools  that  are 
essentially  imperfect  without  being  aware  of  their  imper- 
fection. It  is  likely  that  he  would  have  lacked  and  would 
still  lack  courage  to  work,  if  he  had  known  and  if  he  knew 
the  true  value  of  his  labor.  This  has  been  so  in  the  world 
of  abstract  principles  as  well  as  in  material  life.  Of  the 
real  cause,  he  chooses  what  suits  him,  or  what  interests 
him;  he  gives  to  that  portion  of  the  cause  a  value  which  it 
does  not  possess  in  reality,  and  calls  it  "efficient  cause"; 
he  announces  that  this  element  of  the  phenomena  is  of 
chief  importance,  while  other  elements  are  either  com- 
pletely neglected  or  placed  in  a  lower  rank  under  the  term 
"occasion."  Now  it  has  been  found  that  this  arbitrary 
fashion  of  treating  things  has  been  more  useful  than  harm- 
ful. It  is  quite  evident  that  we  could  never  have  thus 
explained  the  whole  of  a  concrete  phenomenon,  but  what 
is  of  more  value,  we  have  thus  been  able  to  disengage 
certain  physical  and  moral  forces,  to  study  them  in  their 
action  at  close  range,  to  recognize  them  in  various  phenom- 
ena, and  to  see  how  they  deport  themselves  elsewhere. 
This  is  why,  even  though  we  are  conscious  of  the  fact 
that  our  idea  of  cause  is  essentially  subjective,  there  can 
be  no  question  of  abandoning  it.  The  best  we  can  hope 
to  do  is  to  obtain  a  more  precise  knowledge  of  the  value 
of  methods  which  have  been  proved  practically,  but  whose 


§  4  ]      PROBLEMS  OF  SUBJECTIVE  CAUSE        57 

position  theoretically  might  need  to  be  established  more 
firmly. 

The  human  intellect  neglects  some  more  or  less  im- 
portant elements  of  cause,  through  necessity,  ignorance  or 
intention.  Through  necessity,  for  it  cannot  know  every- 
thing nor,  especially,  know  everything  at  the  same  time; 
it  fixes  its  attention  on  what  is  the  easiest  to  perceive, 
and  of  the  greatest  use.  But  the  neglected  causes  are 
not  treated  disdainfully  except  by  the  truly  ignorant, — 
by  those  who  are  ignorant  of  their  own  capabilities 
and  of  the  restricted  horizon  of  their  thought.  This,  how- 
ever, is  not  a  reproach  to  cast  upon  a  person ;  this  ignorance 
has  its  advantages.  It  would  be  very  dangerous,  no 
doubt,  if  exaggerated  tendencies  did  not  correct  one 
another.  Thus  those  who  fashion  historical  laws  would 
lead  us  astray,  if  they  were  not  so  numerous  and  so  op- 
posed to  each  other.  Each  has  taken  but  one  element  of 
general  causality  and  tries  to  see  in  it  the  sole  decisive 
and  continual  force.  Each  affirms  that  the  whole  of  our 
history  is  a  development  of  our  physical  nature  or  of  some 
moral  force,  like  interest,  the  tendency  to  imitation,  the 
search  for  the  ideal,  or  the  unfolding  of  the  collective 
thought.  Through  the  course  of  history,  he  has  gleaned 
some  fragments  of  causes  and,  from  this  debris,  he  tries 
to  construct  not  a  complete  objective  cause,  which  might 
well  be  the  goal  of  his  ambition,  but  a  law,  a  cause  of 
permanent  causes,  which  produces  perpetually  and  un- 
ceasingly, the  entire  world  of  institutions.  If  there  had 
been  but  one  single  historical  law,  it  would  have  killed 
science;  but  there  are  multitudes  of  them  which  act  as 
antidotes  to  one  another.  Logic  loses  but  scientific  ac- 
tivity gains  from  this  state  of  things;  and  schools  based 
upon  a  paradox  adduce  some  substantial  and  interesting 
results  which  would  not  have  been  produced  without  the 
necessity  of  upholding  the  paradox.  It  seems  to  me, 
however,  more  scientific  to  attach  as  much  importance  to 


58  CAUSALITY  IN  LEGAL  HISTORY      [  CH.  I 

appraising  the  rdle  of  unknown  or  neglected  causes  as 
of  known  causes. 

The  choice  of  certain  elements  of  the  cause  and  the 
elimination  of  others  can  be  effected  through  scientific 
calculation.  The  various  methods  of  experimentation  are 
nothing  else.  The  methods  of  agreement,  of  difference  and 
of  concomitant  variations,  analyze  complex  phenomena  in 
order  to  subject  a  single  one  of  their  elements  to  a  pro- 
longed observation.  Cause  is  then  particularly  subjec- 
tive. One  becomes  engrossed  with  a  small  portion  of 
reality;  but  the  phenomenon  in  its  entirety  is  for  the 
experimenter,  a  crude  substance  from  which  he  tries  to 
extract  the  essence  and  reject  the  dross. 

But  even  by  studying  the  origin  of  concrete  facts,  we 
judge  the  cause  in  an  artificial,  sometimes  even  in  a  some- 
what arbitrary  fashion.  Thus  in  a  causal  combination, 
any  element  whose  function  can  be  easily  supplied  with- 
out the  definite  result  being,  for  us,  sensibly  changed, 
does  not  appear  to  play  the  part  of  a  true  cause.  If  a 
soldier  falls  in  the  midst  of  a  storm  of  bullets,  the  one 
which  struck  him  seems  scarcely  to  have  caused  his  death 
more  than  the  others.  Any  one  who  would  lay  a  purse 
of  gold  in  the  middle  of  a  much  traveled  road  would,  in 
our  opinion,  invite  theft  by  his  extraordinary  conduct; 
the  dishonest  person  who  would  take  it  would  do  only 
what  many  another  dishonest  person  might  have  done  in 
his  stead,  and  accordingly  he  would  not  seem  to  us  the 
direct  cause  of  the  theft.  The  juridical  theory  of  provo- 
cation has  been  introduced  under  the  mask  of  causality; 
but  a  causality  that  is  essentially  subjective. 

It  is  likewise  for  practical  reasons  that  causes  which  are 
repeated  most  often  seem  to  be  of  greater  interest  and  im- 
portance. Phenomena  which  are  reproduced  most  fre- 
quently are  particularly  worthy  of  our  attention  because 
by  a  single  observation  and  a  single  interpretation,  we 
cliscover  a  larger  portion  of  truth.  Evidently  the  aim  of 


§5]  CAUSE  AND  CLASSIFICATION  59 

science  is  to  combine  the  greatest  amount  of  information 
possible.  Accordingly  there  is  a  certain  advantage  in 
commencing  with  the  ordinary,  with  the  general,  rather 
than  with  the  extraordinary,  the  exceptional.  What  many 
scholars  have  through  mistake  believed  to  be  a  question 
of  fundamentals,  is  only  a  question  of  method.  But  we 
shall  see  elsewhere  what  part  the  exceptional,  the  indi- 
vidual, even  the  accidental,  may  play  in  science. 

§  5.  Causality  and  Classification.  Diversity  of  Nature 
between  Cause  and  Effect.  Cause  and  Reciprocal  Action. 
Classification  is  interesting  from  an  intellectual  point  of 
view.  It  offers  multitudinous  advantages  to  our  minds, 
particularly  that  of  being  able  to  take  in  at  a  single 
glance  a  number  of  important  things,  (a)  It  may  be  en- 
tirely arbitrary,  made  only  for  us,  without  taking  into 
account  the  intimate  nature  of  the  things  thus  arranged. 
We  may  group  people  according  to  their  size  or  their 
color  and  separate  what  lives  in  the  water  from  what  lives 
upon  land.  Such  classifications  are  not  false,  in  them- 
selves; they  should  serve  only  that  particular  need  for 
which  they  were  instituted:  (b)  There  are  others  that  are 
more  scientific,  such  as  those  into  mammals  and  fish, 
which  reveal  a  great  number  of  common  characteristics. 
All  scholars  try  to  establish  such  classifications  in  their 
special  fields.  Finally  (c),  there  are  those  which  reveal 
a  bond  of  relationship  between  things,  such  as  those  upon 
which  the  genealogy  of  living  beings  is  based.  There  is 
thus  obtained  a  maximum  of  objectivity  in  classification, 
for  our  logical  operation  corresponds  then  to  something 
which  is  actually  accomplished.  It  is  important  not  to 
confuse  these  three  operations  which  in  the  main  have 
only  a  name  in  common. 

In  the  search  for  causes,  we  may  utilize  classifications 
but  not  unless  we  have  made  a  preliminary  study  of  their 
characters.  If  classifications  are  poorly  made,  they  are 
purely  artificial,  and  I  strongly  suspect  psychology  of 


60          CAUSALITY    IN    LEGAL   HISTORY      [CH.  I 

furnishing  this  kind;  if  they  are  well  made,  they  belong  in 
the  second  category;  they  are  natural  and  based  upon  a 
great  many  common  characteristics.  These  are  the  most 
ordinary  kind.  They  are  almost  never  genetic. 

Thus,  in  the  study  of  cause,  we  shall  group  together  the 
biological,  the  psychological,  and  the  juridical  causes;  we 
shall  be  able  to  study  the  various  subdivisions  of  each  of 
these  categories  in  so  far  as  they  can  produce  institutions. 
It  is  evident  that  the  phenomena  which  have  common 
characteristics  and  belong  therefore  in  the  same  class, 
will  conduct  themselves  in  relation  to  the  law  in  ways  not 
entirely  alike  but  relatively  analogous.  Thus  it  is  prob- 
able that  if  some  one  racial  characteristic  has  had  a  certain 
importance  in  the  elaboration  of  the  law,  others  of  the 
same  nature  ought  also  to  have  similar  importance.  This 
is,  it  is  true,  a  somewhat  loose,  but  a  good  enough  applica- 
tion practically,  of  the  principle  that  the  same  causes 
produce  the  same  effects. 

1:  COMMON  MISTAKES  IN  THE  APPLICATION  OF  CLAS- 
SIFICATIONS TO  CAUSAL  INTERPRETATION.  (1)  But  we  can- 
not make  a  relation  of  causality  result  from  scientific 
classifications  themselves.  It  can  simply  be  stated  that 
present  biological  facts  spring  from  former  biologic  facts; 
our  sentiments  and  mentality  of  today,  from  our  senti- 
ments and  mentality  of  yesterday ;  our  present  institutions 
from  institutions  of  the  past.  Like  does  not  necessarily 
engender  like,  the  one  is  not  necessarily  the  cause  of  the 
other.  Thus  it  cannot  be  said  that  railway  or  automobile 
accidents  arise  from  those  of  the  old  time  stage  coach,  or 
that  the  Apaches  of  the  suburbs  of  Paris  are  the  descend- 
ants of  the  brigands  of  Calabria.  There  is  a  similarity  in 
the  causes  and  the  effects  in  the  different  situations.  We 
might  group  them  together  in  a  study  of  causes  but 
there  is  no  real  relationship  between  them. 

Nevertheless,  entire  systems  have  been  based  upon  this 
confusion  of  natural  and  genetic  classifications,  and  this 


§5]  CAUSE   AND   CLASSIFICATION  61 

not  by  accident,  but  by  design.  All  institutions  of  the 
same  type  have  been  connected  by  a  bond  of  internal 
causality;  thus  our  idea  of  property  would  be  caused  by 
the  same  idea  in  the  past;  it  would  therefore  be  entirely 
a  social,  juridical  and  economic  entity.  Each  would  de- 
velop through  its  own  power  of  evolution.  We  believe, 
on  the  contrary,  that  cause  and  effect  can  and  often  do 
belong  in  entirely  different  scientific  classes.  When  I 
propose  to  make  a  sale  or  a  purchase,  the  clauses,  perhaps 
new  ones,  that  I  insert  in  the  contract  spring  from  my 
psychological  state,  the  state  of  the  market,  and  the  nature 
of  the  things  which  I  wish  to  sell  or  buy,  rather  than  from 
contracts  of  a  similar  nature  which  have  been  drawn  up 
before.  Accordingly,  the  history  of  the  law  does  not 
seem  to  me  to  be  a  succession  of  juridical  elements  which 
have  changed  gradually,  but  an  explanation  of  each  ele- 
ment by  the  causes  that  produce  it  at  each  period  and  that 
will  not  be  the  same  in  the  succeeding  period. 

(2)  A  still  graver  error  in  the  application  of  classifi- 
cation to  causal  interpretation  consists  in  instituting 
classes  of  phenomena  which,  in  relation  to  others,  always 
act  the  part  of  causes,  and  other  classes  which  can  only 
be  effects  of  the  first.  Thus  it  has  been  said  that  the  moral 
is  the  product  of  the  physical,  and  that  individual  thought 
created  institutions,  or  inversely,  that  the  congregating 
of  people  in  cities  was  the  cause  of  intelligence.  Thus  the 
whole  of  history  has  been  explained  by  economic  facts. 
In  reality,  all  classes  of  phenomena  are  capable  of  in- 
fluencing each  other  reciprocally.  To  express  this  truth, 
some  one  hit  upon  the  happy  idea  of  replacing  the  word 
"cause"  by  "reciprocal  influence."  In  considering  them 
in  so  far  as  they  are  classes,  "in  abstracto,"  it  can 
only  be  said  that  the  law  is  the  cause  of  manners 
or  manners  the  cause  of  law.  The  two  things  exist 
side  by  side  and  act  and  react  upon  each  other,  by 
reciprocal  influence. 


62         CAUSALITY   IN   LEGAL   HISTORY       [Cn.  I 

2.  METHOD  ADVISABLE  FOR  THE  HISTORIAN.  But  it  is 
not  possible  for  a  historian  to  speak  thus,  for  he  is  occupied 
with  the  concrete;  he  has  to  analyze  this  reciprocal  in- 
fluence temporally,  and  decompose  it  into  a  series  of 
causes  and  effects.  Every  concrete  fact  of  juridical  life 
may  be  the  product  of  complex  causes ;  it  is  none  the  less 
an  effect  of  what  has  preceded  it,  and  a  cause  of  what 
follows  it.  Any  purchase  or  any  sale  of  stocks  which  I 
may  make  at  the  Exchange  will  be  the  effect  of  former  mar- 
ket prices,  and  will  have  its  influence  upon  succeeding  ones. 
In  abstracto,  there  is  a  reciprocal  influence  of  one  specula- 
tion upon  another.  This  will  be  the  point  of  view  of  the 
sociologist  and  the  economist.  For  the  historian,  there 
is  a  train  of  causes  and  effects  which,  if  possible,  ought  to 
be  studied  separately. 

History  ought  to  attempt  a  genetic  classification  of 
events  in  so  far  as  they  are  causes  and  effects,  without 
taking  account  of  their  nature.  There  exist  in  objective 
reality  some  facts  which  are  foreign  to  one  another  and 
others  which  are  more  or  less  related.  The  cause  and  the 
effect  are  in  a  relation  of  immediate  affiliation.  Two 
effects  which  depend  upon  the  same  concrete  cause  may 
have  a  natural  resemblance  to  one  another  and  possess 
some  common  characteristics.  The  common  author,  the 
common  cause,  can  be  discovered  at  two,  three  or  even 
more  removes,  without  the  bond  of  relationship  being 
obliterated.  Let  us  borrow  an  example  from  Cournot  in 
order  to  make  a  somewhat  different  use  of  it.  Two 
brothers  took  part  in  the  same  struggle  and  were  killed 
by  the  same  shell,  the  two  deaths  have  the  same  cause; 
they  were  not  killed  by  the  same  bullet,  but  in  the  same 
battle,  which  is  here  the  common  cause  of  a  degree  farther 
removed;  they  were  not  killed  in  the  same  battle  but  in 
the  same  war;  the  common  cause  recedes  to  a  greater  dis- 
tance still.  It  will  grow  more  and  more  distant,  if  we 
suppose  by  turns  that  they  did  not  lose  their  lives  in  the 


§  5  ]  CAUSE  AND  CLASSIFICATION  63 

same  war,  but  had  as  a  common  vocation,  the  military 
profession;  that  they  did  not  have  this  profession,  but 
were  constrained  by  the  same  event,  and  so  on.  Thus 
the  historian  can  and  ought  to  establish  series,  gene- 
alogies of  facts  of  a  different  nature,  which  are  con- 
nected by  the  bonds  of  real  relationship  and  have  a 
common  author. 

The  objection  will  not  fail  to  be  brought  forward  that 
this  study  is  very  complex  and  impossible  to  realize  even 
very  partially..  This  is  very  true;  it  can  only  be  a  question 
of  attaining  it  occasionally  and  in  a  very  rudimentary 
fashion.  But  of  what  use  is  a  labor  of  this  kind,  or  to 
express  it  according  to  Moliere,  what  is  it  that  all  of  this 
can  cure?  This  can  cure  some  maladies  quite  effectively, 
especially  vertigo  which  attacks  the  most  reasonable  man 
when  he  thinks  proper  to  argue  upon  the  good  and  evil 
effects  of  the  law.  Besides,  practice  has  found  by  in- 
stinct the  method  which  we  expound,  much  sooner  than 
theory  has  been  able  to  do  by  explaining  its  mechanism. 
We  wish  to  judge  of  a  law  or  of  an  institution ;  a  tree  must 
be  judged  by  its  fruits;  but  what  are  its  fruits?  It  has 
been  accompanied  by  both  fortunate  and  unfortunate 
facts;  but  which  are  related,  and  which  are  foreign  to  it? 
Must  we  see  in  it  the  consequences  of  the  principle  in- 
tended by  the  legislator,  a  combination  of  his  principles 
with  outside  circumstances,  or  the  product  of  an  acci- 
dental cause  of  an  entirely  different  nature  ?  There  might 
still  be  many  other  combinations  to  examine;  the  in- 
criminated fact  may  have  no  direct  relationship  with  the 
institution,  and  yet  be  descended  from  one  and  the  same 
cause.  If,  for  example,  a  lowering  of  the  moral  standard 
of  a  people  should  bring  about,  at  the  same  time,  modifica- 
tions in  the  marriage  institution  and  an  increase  in  crime. 
The  same  method  serves  to  estimate  the  value  of  juridical 
projects  by  the  study  of  former  laws  and  of  their  causal 
affiliation. 


64  CAUSALITY  IN  LEGAL  HISTORY       [  CH.  I 

It  is  better  that  such  an  investigation  be  employed  by 
the  science  of  history  even  before  its  immediate  applica- 
tions are  proved. 

§  6.  Causality  and  Chronology.  The  effect  is  always 
subsequent  to  the  cause.  It  has  been  denied  that  this  is 
always  true  in  the  physical  world.  In  history,  the  princi- 
ple is  incontestable.  Philosophically,  it  ought  to  be  im- 
mediately subsequent.  There  cannot  be  the  shortest  im- 
aginable instant  when  neither  of  the  two  phenomena 
would  exist.  Beings  cannot  sink  into  nothingness  in 
order  to  emerge  from  it.  Accordingly,  the  cause-instant 
and  the  effect-instant  are  fractions  so  infinitesimally  small 
that  our  minds  can  form  no  conception  of  them.  Our  in- 
tellect conceives  things  more  in  bulk;  between  two  things 
that  it  observes,  it  permits  an  entirely  neutral  zone,  in- 
habited by  an  incalculable  number  of  intermediate  facts 
which  are  true  effects  of  the  phenomenon  creating,  and 
true  causes  of  the  phenomenon  produced.  Between  the 
taking  of  poison  and  death,  there  is  a  succession  of  stages 
during  any  one  of  which  some  one  might  intervene,  by 
known  or  unknown  means,  and  neutralize  the  effects  of 
the  poison.  Only  the  last  stage  is  the  cause  of  death  and 
not  the  fact  that  the  poison  has  been  swallowed,  since 
practically  the  calamity  could  still  have  been  avoided.  In 
the  juridical  domain,  a  considerable  interval  of  time  will 
necessarily  intervene  between  the  moment  when  material 
circumstances  present  an  idea  to  human  thought,  and 
that  when  what  we  extol  as  juridical  cause  influences  the 
law.  An  intermediate  period  is  indispensable  to  formu- 
late the  desire  for  the  reform,  to  popularize  it,  to  discuss 
it  and  finally  to  transform  it  into  law. 

But  in  order  to  justify  us  in  neglecting  true  causes  and 
true  effects  for  distant  causes  and  their  subsequent  effects, 
it  is  not  enough  to  invoke  our  incapacity.  Is  not  such 
negligence  of  a  nature  to  distort  the  truth?  That  is  what 
it  behooves  us  to  verify. 


§  7  ]  CAUSALITY  AND  HISTORY  65 

We  may  neglect  intermediate  states  when  they  are  all 
identical  in  nature  and  degree.  It  matters  not  how  near 
to  or  far  from  the  source  I  draw  water  from  a  pipe,  and 
electricity  running  along  a  wire  is  identically  the  same  at 
both  ends.  So  with  feelings  and  thoughts;  certain  ones 
are  the  same  that  they  were  yesterday  and  are  to  be 
found  in  a  thousand  minds  in  almost  the  same  form. 

Physically  and  morally,  we  may  also  immobilize  a  part 
of  the  cause  for  considerable  intervals.  A  gun  may  re- 
main loaded  for  years  without  losing  its  power  of  projec- 
tion. Legal  texts  are  forces  which  may  await  the  mo- 
ment of  action  a  long  time,  —  permanent  causes  which 
lie  in  wait  for  individuals  who  pass  within  their  reach ;  to 
some  they  remain  entirely  indifferent,  to  others  they 
bring  success  and  to  others  still,  destruction. 

This  state  of  apparent  immobility  which  certain  phe- 
nomena present,  permits  us  to  connect  causes  and  effects 
in  legal  history  across  considerable  distances,  —  to  find 
again  in  our  modern  law,  the  influences  of  Roman,  Ger- 
man and  feudal  laws,  as  well  as  that  of  various  ancient 
and  modern  philosophies.  But  the  intermediate  states 
are  not  absolutely  neutral  and  should  be  inspected. 

§  7.  History  and  Causality.  Is  not  history  in  a  sorry 
plight  in  relation  to  the  science  of  causes?  Are  not  its 
complexity,  its  diversity,  the  intermingling  of  its  various 
factors,  and  the  difficulty  of  its  lending  itself  to  artificial 
methods  of  abstraction  and  experimentation,  bound  to 
discourage  the  most  intrepid  investigators  and  make  the 
causal  explanation  of  events  appear  practically  impos- 
sible? 

1:  INDIVIDUALIZATION  AND  GENERALIZATION  OF  HIS- 
TORICAL CAUSES.  Historians  may  take,  and  have  taken, 
different  positions  in  regard  to  the  problem  of  causes. 
Some  have  refused  to  concern  themselves  with  it.  They 
have  remained  narrators;  scrupulous  and  critical  narra- 
tors, devoting  all  of  their  logic  and  their  learning  to  re- 


66         CAUSALITY   IN   LEGAL   HISTORY       [Cn.I 

lating  accounts  which  are  irreproachably  authentic,  even 
in  the  smallest  detail.  These  are  the  true  founders  of  his- 
torical science;  we  are  struck  with  admiration  at  the  ser- 
vices they  have  rendered,  but  we  ask  ourselves  why  have 
they  rendered  them,  why  have  they  labored  and  why  do 
they  labor,  since  they  have  no  consciousness  of  the  value 
of  their  work. 

Some  bold  thinkers  have  twitted  them  with  it.  "These 
learned  men,"  they  say,  "are  useful  only  to  accumulate 
materials.  By  themselves,  they  can  produce  nothing. 
What  is  the  good  of  knowing  the  length  of  human  life  if 
we  derive  no  experience  from  the  fact  ?  Experience  is  for- 
mulated in  general  terms  applicable  to  a  great  number  of 
situations.  The  aim  of  history  is  to  establish  formulas 
which  may  be  of  use  in  the  practical  guidance  of  the  life 
of  the  future  and  the  scientific  knowledge  of  human  evo- 
lution. It  should  not  be  dismayed  by  the  complexity  of 
causes.  One  can  study  the  action  of  the  most  interesting, 
and  neglect  the  others.  Investigation  of  frequent,  gen- 
eral and  typical  causes  is  the  aim  of  history.  Under  this 
condition  it  becomes  a  science." 

This  is  not  bad  reasoning.  But  to  confine  oneself  to 
the  study  of  general  and  frequent  causes,  would  be  to  dis- 
regard that  in  which  history  can  be  especially  valuable  to 
us,  —  to  ignore,  through  prejudice,  what  it  alone  can 
supply  to  our  thought  and  our  logic. 

This  would,  in  my  opinion,  impoverish  science  and  be 
dangerous  to  it.  History  is  the  science  which  strives  most 
earnestly  and  constantly  to  draw  nearer  the  objective 
cause,  that  is  to  say,  reality.  Reality  is  not  cognizant  of 
general  causes,  or  is  so  only  to  the  extent  to  which  they 
have  taken  part  in  particular  ones.  It  is  legitimate,  profit- 
able and  indispensable  to  generalize.  The  human  mind 
must  do  so  to  encompass  a  part  of  the  truth  that  is  not 
too  narrow.  But  the  aim  of  science  is  what  exists  or  has 
existed  objectively,  and  not  what  exists  only  for  us.  The 


§7]  CAUSALITY  AND   HISTORY  67 

individual  is  the  inexhaustible  mine  of  truth  because  it  is 
interchangeable  with  reality  itself,  and  we  shall  succeed 
in  enlarging  our  knowledge  by  observing  the  production 
of  a  given  phenomenon  in  all  of  its  perceptible  details, 
quite  as  much  as  by  abstraction  and  generalization. 

Generalization  of  causes  is  a  most  fruitful  historic  pro- 
cess. But  it  loses  in  "reality"  what  it  gains  in  ''general- 
ity," and  can  constitute  but  a  transitory  form. 

The  profound  sociological  work  of  our  eminent  con- 
frere Pareto  furnishes  a  typical  example  of  this.  The 
ideas  of  Livy,  who  might  be  called  the  naive  historian  on 
the  subject  of  historic  causes,  are  there  placed  in  nice  op- 
position to  those  of  modern  science.  How  are  we  to  ex- 
plain that  at  a  certain  time  in  Roman  history,  plebeians 
acquired  the  right  to  honors  hitherto  reserved  for  patri- 
cians ?  Livy  sees  in  this  the  effect  of  a  small  and  entirely 
individual  cause, — the  rivalry  of  two  sisters,  one  of  whom 
was  married  to  a  plebeian,  the  other  to  a  patrician.  The 
modern  historian  smiles  at  the  anecdote;  even  supposing 
it  true,  it  would  explain  nothing.  A  people  is  not  going 
to  change  its  law  simply  to  please  a  jealous  woman.  This 
gradual  disappearance  of  the  privileges  of  the  upper  classes 
under  pressure  of  the  lower,  is  seen  in  many  .other  civ- 
ilizations, and  it  is  unimaginable  that  there  were  rival 
sisters  everywhere  to  bring  it  about.  The  cause  of  the 
event  is  a  general  cause;  we  may  formulate  it  in  these 
terms:  the  ascensional  movement  of  the  elite,  which 
transforms  old  aristocracies.  Let  us  admit  the  authen- 
ticity of  the  two  explanations;  that  the  story  of  Livy  is 
exact  and  the  modern  theory  of  the  elite  equally  so.  One 
does  not  prevent  the  other.  What  is  the  causal  value  of 
each? 

The  modern  explanation  is  more  fruitful;  it  adapts  it- 
self to  a  number  of  much  more  important  situations.  We 
very  often  see  in  history  the  elite  succeeding  one  another, 
and  very  seldom  sisters  bringing  about  political  transfer- 


68         CAUSALITY   IN   LEGAL   HISTORY       [Cn.  I 

mations  by  their  quarreling.  It  is  also  more  complete, 
for  the  ascensional  force  of  the  elite  can  combine  an  in- 
definite number  of  small  particular  forces,  while  the  Latin 
narrative  is  connected  with  but  one  of  them,  —  a  single 
wounded  vanity  the  power  of  which  is  exaggerated.  A 
great  deal  of  exasperation  and  jealousy  on  the  part  of  a 
great  many  people,  joined  with  various  other  psycholog- 
ical phenomena,  would  have  been  necessary  to  have  pro- 
duced the  effect  in  question.  But  the  cause  with  the 
modern  historian  is  less  real,  more  subjective;  the  cause 
given  by  Livy  more  real,  more  objective.  Upon  this 
wholly  special  point,  I  cannot  share  the  opinion  of  my  il- 
lustrious colleague,  who  represents,  nevertheless,  the  pre- 
vailing opinion.  For  an  "ascensional  movement"  is  an 
abstraction.  And  an  abstraction  cannot  make  its  sister 
jealous,  complain  to  its  father  of  being  humiliated  or  in- 
cite him  to  action,  any  more  than  it  can  descend  into  the 
Forum,  free  the  law  from  injustice,  enter  into  conspira- 
cies, cause  the  people  to  hope  for  the  abolition  of  debts  or 
intimidate  the  patricians.  It  would  have  been  necessary, 
however,  for  these  or  similar  things  to  have  been  accom- 
plished before  the  plebeians  could  have  attained  the  hon- 
ors. The  daughter  and  the  son-in-law  of  Fabius  Ambus- 
tus,  aided  by  him,  were  in  a  position  to  do  it,  and  if  they 
had  not  done  it,  other  men  and  women  in  flesh  and  blood 
would  have  had  to  act  in  their  stead.  Besides,  the  mod- 
ern school,  in  spite  of  its  small  relish  for  anecdotes,  does 
not  deny  that  the  abstract  and  general  cause  is  a  compo- 
sition of  concrete  and  particular  causes,  but  it  claims  that 
among  the  concrete  facts  which  have  preceded  an  event, 
there  are  some  which  make  their  appearance  under  the 
same  form  in  all  like  situations,  and  which  are  accordingly 
important;  that  there  are  others  which  are  peculiar  to 
each  situation  and  are  therefore  of  no  importance.  With 
all  the  changes  of  the  elite  which  have  taken  place  in  an- 
tiquity or  in  our  own  times,  certain  concrete  facts  of  the 


§  7  ]  CAUSALITY  AND  HISTORY  69 

same  nature  ought  to  correspond.  By  calling  them  "as- 
censional movement"  we  isolate  them  and  thus  separate 
the  wheat  from  the  chaff. 

2:  OBJECTIVE  AND  SUBJECTIVE  CHARACTER  OF  Two 
OPERATIONS.  In  reality,  by  our  act  of  abstraction,  we 
have  evinced  the  desire  to  make  this  selection,  but  we 
have  not  made  it.  In  order  to  do  it,  it  would  be  neces- 
sary to  know  what  concrete  or  psychological  or  biological 
phenomena  form  a  part  of  the  cause  which,  among  all 
peoples,  make  the  higher  classes  fall  under  the  pressure 
from  beneath.  We  do  not  know  these  phenomena,  or  at 
any  rate  we  have  the  right  to  speak  of  the  "ascension  of 
the  elite"  without  knowing  them.  We  have  labeled  some 
facts  as  real  but  unknown  and  resigned  ourselves  to  our 
ignorance.  This  is  an  essentially  subjective  operation. 
Still  let  us  admit  that  the  term  "ascension  of  the  elite" 
represents  to  us  clearly  defined  psychological  and  biolog- 
ical ideas :  corruption  of  aristocracies  by  pleasure,  and 
degeneracy  through  lack  of  selection.  These  ideas,  a  lit- 
tle less  vague,  would  always  be  of  abstraction  and  not  of 
reality,  of  life.  The  real  cause  cannot  exist  without  dis- 
putes between  women  or  men,  disturbances,  insults,  ha- 
rangues, all  that  Livy  reveled  in,  all  that  the  modern  his- 
torians believe  ought  to  be  eliminated.  The  latter  do 
work  that  is  scientific  but  essentially  unreal.  This  is  not 
casting  a  reproach  upon  them.  The  study  of  general 
causes  has  rendered  and  will  render  great  service  to  his- 
tory but  it  is  entirely  artificial  and  is  of  no  use  in  the  sci- 
ence of  causes. 

This  is  no  reason  to  return  to  Livy.  The  study  of  the 
individual  must  be  pursued  not  by  anything  less  but  by 
something  more  than  general  methods.  The  idea  of  cause 
and  effect  is  far  from  being  very  clear  in  general  philos- 
ophy. We  have  not  attained  it  through  experience;  will 
not  a  longer  experience  give  us  a  clearer  idea  of  it?  By 
studying  the  cause  through  more  objective  material,  his- 


70  CAUSALITY  IN  LEGAL  HISTORY        [CH.I 

tory  can  hope  to  render  some  service  in  this  respect  even 
to  philosophy. 

History  alone  can  teach  us,  for  example,  how  these 
molecules  of  cause  become  associated  to  produce  a  great 
event,  how  one  of  them  may  sometimes  take  the  lead 
and,  although  of  a  like  nature  to  the  others,  play  an  en- 
tirely different  part. 

In  rhetoric,  we  have  abused  "the  drop  of  water  which 
makes  the  vase  overflow"  without  taking  into  account 
the  exact  role  of  that  drop  of  water.  It  falls  at  the  mo- 
ment when  the  vase  is  already  too  full;  the  water  is  out 
of  bounds  and  can  no  longer  maintain  its  position  through 
molecular  attraction.  The  position  is  still  tenable,  but  at 
the  maximum  of  tension.  There  is  no  room  for  the  new 
comer,  and  it  leans  forward;  but  the  general  energy  is 
destroyed  by  its  example  and  its  impulse.  The  effort,  the 
tolerance,  the  desire  for  peace,  the  respect  for  tradition 
which  could  still  have  maintained  the  equilibrium  a  long 
time,  give  way;  the  vase  overflows  with  its  excess,  and 
everything  re-enters  the  limits  of  strict  law.  This  is  one 
instance  of  where  a  small  cause  produces  a  great  event  in 
human  life  and  the  history  of  institutions.  But  it  is  not 
the  only  one;  there  are  those  more  frequent  and  more 
tragic  where  the  vase  does  not  overflow,  but  is  over- 
turned, for  the  human  soul  rarely  preserves  the  impassi- 
bility and  strict  impartiality  of  an  immobile  vase. 

Anecdotal  history  —  even  the  novel  itself  —  would  never 
have  excited  the  least  interest,  would  never  have  been 
written,  were  not  man  instinctively  interested  in  the 
many  ways  in  which  small  causes  act.  Scientifically,  I 
do  not  believe  that  he  is  wrong. 

§  8.  Cause  and  Origin  in  History  of  Legal  Institutions. 
There  are,  in  history,  some  relatively  simple  facts  the 
birth  and  development  of  which  it  is  a  simple  matter  to 
observe;  there  are  many  others,  more  obscure  and  more 
complex,  such  as  customs,  institutions  and  laws,  which 


§8]  CAUSE  IN  LEGAL  HISTORY  71 

are  slowly  formed  under  influences  impossible  to  specify. 
Accordingly,  the  historian  of  the  law,  should,  above  all 
others,  guard  against  the  mirage  of  causal  explanation 
and  confine  himself  to  expounding  laws  in  their  order 
and  to  develop  their  juridical  meaning.  Far  from  com- 
paring them  with  the  physical,  economic,  and  social 
sphere,  he  should  avoid  any  idea  of  this  kind.  To  one 
who  renounces  the  search  for  causes  and  effects,  such 
comparisons  are  only  inopportune  digressions.  As  for 
any  philosophic  speculation,  he  ought  to  hand  that  over 
to  historical  sociology  which,  by  means  of  the  documents 
which  it  has  collected  and  interpreted,  seeks  not  the 
cause  of  a  particular  institution  at  a  particular  moment 
in  hisory,  but  the  general  relations  which  exist  at  all 
times  between  juridical  science  and  the  other  elements  of 
civilization.  The  difference  between  the  history  of  law 
and  sociology  based  on  history,  appears  to  be  that  the 
former  endeavors  to  arrive  at  a  knowledge  of  the  indi- 
vidual cause  of  each  juridical  fact,  and  the  latter,  at  a 
knowledge  of  general  and  schematic  causes.  Is  it  necessary, 
as  some  think,  to  relinquish  the  first  pursuit  altogether? 

1:  INVESTIGATION  OF  INDIVIDUAL  CAUSES  OF  JURID- 
ICAL FACTS,  OBJECT  OF  LEGAL  HISTORIAN.  The  individ- 
ual historical  cause  is  no  more  difficult  to  discover  than 
the  general  sociological  cause.  Unless  it  borrowed  from 
other  sciences,  history  by  itself  would  undoubtedly  never 
explain  anything.  One  might  observe  gunpowder  a  hun- 
dred years,  without  guessing  how  it  was  made  or  that  it 
was  capable  of  explosion.  One  might  follow  the  law  in 
detail  through  centuries  without  discovering  its  origin,  or 
its  effects.  Even  general  history,  however  presumably 
complete,  where  we  see  the  various  elements  of  civiliza- 
tion flourish  side  by  side,  furnishes  only  very  uncertain 
relations  of  causality. 

In  order  to  be  productive,  history  ought  to  rely  upon  a 
causal  science,  a  study  of  causes  grouped  according  to 


72  CAUSALITY  IN  LEGAL  HISTORY       [  CH.  I 

their  reciprocal  influence.  In  regard  to  the  history  of 
the  law,  it  behooves  us  to  know  what  things  act  upon  the 
law  and  how  they  act.  Sociology  will  help  us  to  under- 
stand this,  but  will  not  be  sufficient  by  itself. 

The  application  of  the  abstract  formulas  which  it  may 
furnish  to  concrete  situations  is  a  special  labor.  The  his- 
tory of  the  law  has  its  special  role  in  philosophy  and  its 
special  causes;  it  has  also  its  special  method.  The  method 
of  a  science  is  based  upon  the  degree  of  subjectivity 
which  the  objective  cause  undergoes  through  it.  From 
this  point  of  view,  the  history  of  the  law  is  found  to  oc- 
cupy a  place  between  history  and  sociology.  The  sociol- 
ogist selects  only  that  part  of  the  objective  cause  which 
can  be  expressed  in  an  abstract  formula,  the  historian, 
the  whole  of  the  objective  cause,  and  the  historian- jurist, 
what  has  left  its  impress  upon  the  law.  Let  us  take  an 
example:  It  is  to  the  energy  of  Napoleon  I  that  the 
drawing  up  and  promulgating  in  his  time  of  the  Civil 
Code  are  due.  General  history  cannot  neglect  the  au- 
thoritative acts  which  he  occasioned  thereby.  They  are 
of  interest  to  legal  history  only  if  the  emperor  influenced 
the  text  itself,  caused  certain  provisions  to  be  admitted, 
and  certain  others  to  be  set  aside.  Sociology  will  not  oc- 
cupy itself  with  this  accidental  influence  in  any  case.  It 
studies  codification  in  itself,  and  what  place  it  had  in 
France  under  Napoleon,  or  in  Germany  under  William 
II.  The  common  causes  and  common  effects  of  the  two 
phenomena  are  for  it  the  sole  matters  of  interest. 

The  sociologist  makes  natural  classifications  of  causes, 
the  historian,  genetic  classification  and  the  historian  of 
the  law  should  employ  both.  He  ought,  on  the  one  hand, 
to  group  together  the  various  circumstances  which  have 
produced  feudalism  or  any  other  institution,  in  a  coun- 
try, and,  on  the  other  hand,  the  institutions  which  pre- 
sent traits  of  resemblance  whatever  may  have  been  their 
causes. 


§8]  CAUSE  IN  LEGAL  HISTORY  73 

But  sociology  draws  nearer  to  the  objective  cause  as 
regards  the  identification  of  cause  and  effect.  Reasoning 
as  it  does,  upon  abstract  ideas  which  it  can  analyze  and 
simplify  at  will,  it  can  show  us  more  clearly  how  what 
appears  multiple  is  nevertheless  identical;  how,  for  exam- 
ple, certain  institutions,  are  at  bottom  but  interest  as- 
suming different  forms.  The  historian,  who  deals  with 
more  complex  facts,  will  never  succeed  in  discovering  so 
accurately  in  what  respect  the  parent  phenomenon  re- 
sembles its  offspring,  and  the  historian  of  the  law  will 
not  even  concern  himself  with  it.  The  parallel  might  be 
pushed  further  if  the  search  for  causes  in  the  history  of 
the  law  did  not  appear  sufficiently  justified. 

2:  NECESSITY  OF  DISTINCTION  THROUGH  ANALYSIS 
BETWEEN  THE  OBJECTIVE  AND  THE  SUBJECTIVE  CAUSE. 
It  must  be  confessed  that  in  practice  we  argue  at  random 
upon  the  causes  and  origins  of  institutions  but  to  no 
avail.  This  is  due  in  a  large  measure,  I  think,  to  this 
confusion  between  the  objective  and  the  subjective  cause. 
Objectively,  everything  that  has  contributed  towards  the 
making  of  an  institution  is  a  part  of  its  cause  by  the 
same  right.  Subjectively,  we  may  look  at  the  matter 
from  very  different  points  of  view. 

We  observe  customs,  institutions,  and  juridical  prac- 
tices, which  have  persisted  without  appreciable  change 
for  centuries,  suddenly  become  very  noticeably  trans- 
formed through  some  outside  influence.  What  is  the 
cause  of  the  new  institution?  Most  assuredly,  some  will 
say,  it  is  the  new  element  which  has  been  active  and  has 
changed  the  old  element  to  suit  its  fancy.  Accordingly, 
the  social  role  of  the  law  is  here  the  real,  the  efficient 
cause.  The  true  cause  of  feudalism  was  the  necessity  of 
establishing  a  cavalry,  on  the  order  of  the  Arabs.  The 
pre-existing  institutions  simply  served  to  reveal  the  tech- 
nical process  needed  to  obtain  the  desired  result.  We 
may,  with  quite  as  much  reason,  assert  that  the  cause  of 


74  CAUSALITY  IN  LEGAL  HISTORY       [Cu.  I 

an  institution  lies  in  what  has  immediately  preceded  it. 
At  the  time  of  the  military  transformation  in  question, 
the  system  of  land  administration,  the  condition  of  the 
people,  and  the  bond  which  attached  those  of  lesser  rank 
to  the  more  powerful,  assumed  special  form  under  the 
pressure  of  the  necessity  for  defense;  but  the  social  state 
did  not  change  abruptly.  Juridical  ideas  and  economic 
growth  do  not  differ  greatly  from  one  moment  to  an- 
other, and  in  a  great  many  details,  the  institution  of  one 
day  is  a  reproduction  of  that  of  the  day  before.  Must  we 
not  conclude  from  this  that  it  is  the  same  institution 
modified  in  some  of  its  elements?  The  true  cause  of  my 
individuality  of  today  is  my  individuality  of  yesterday, 
even  when  I  do  not  wear  the  same  clothes. 

The  two  opposed  systems  are  incomplete.  Can  we  say 
that  they  are  complements  of  each  other?  This  would  still 
be  too  ambitious.  A  phenomenon  as  complex  as  feudalism 
has  an  extraordinary  complex  cause  and  may  be  consid- 
ered under  an  infinite  number  of  aspects.  All  of  the  theo- 
ries concerning  the  origin  of  feudalism  can  be  equally  true, 
and  others  might  be  formulated  which  would  be  true  also. 

In  reality,  feudalism  had  no  cause,  for  the  very  good 
reason  that  it  did  not  exist.  There  existed  feudal  in- 
stitutions each  having  its  special  cause,  or  rather  each 
presenting  an  infinite  number  of  feudal  facts:  contracts, 
usages,  extensions  of  usages,  laws,  etc.  In  reality,  each 
of  these  facts  had  a  cause.  We  may  speak  of  the  causes 
of  feudalism,  but  this  expression  will  be  essentially  sche- 
matic and  cannot  serve  as  the  basis  of  an  argument.  It 
would  be  of  just  as  much  value  to  discuss  which  one  of 
several  drawings  made  by  five-year-old  children  most  re- 
sembled a  man  in  flesh-and-blood. 

The  more  we  analyze  institutions,  the  nearer  we  may 
hope  to  approach  the  objective  cause.  Thus  marital 
community  is  scarcely  more  definite  than  feudalism.  The 
question  of  its  origin  is  obscure,  probably  insoluble  even, 


§  8  ]  CAUSE  IN  LEGAL  HISTORY  75 

because  we  unite  different  ideas  in  a  single  vocal  expression : 
participation  of  the  wife  in  profits,  partnership  between 
husband  and  wife,  ease  of  liquidation  of  common  property, 
and  transformation  of  a  benefit  of  survivorship  into  a  right 
by  which  the  relatives  of  the  wife  will  profit.  All  of  these 
ideas  coexist  in  the  conjugal  community  and  constitute 
so  many  social  aims,  each  having  its  particular  causes. 

The  investigation  of  causes  in  the  history  of  law  ought 
to  be  essentially  analytic. 

BIBLIOGRAPHY 

ARISTOTLE,  Metaphysics,  bk.  I;'  FRANCIS  BACON,  De  Dignitate  et 
Augmentis  Scientiarum,  bk.  Ill,  chap.  IV;  HUME,  An  inquiry  Con- 
cerning Human  Understanding  (French  translation,  Amsterdam, 
1758);  COURNOT,  Considerations  sur  la  marche  des  idees  et  des 
eVenements  dans  les  temps  modernes,  I,  p.  51;  BOUTROUX,  Con- 
tingence  des  lois  de  la  nature,  pp.  21-22. 

TH.  RIBOT,  Les  ide"es  g£ne"rales,  p.  203;  TAINE,  De  1'intelligence, 
part  II,  bk.  IV,  chap.  II,  §§  1,2;  BERR,  Avenir  de  la  philosophic,  p. 
360;  FONSEGRIVE,  La  causality  efficiente;  LACHELIER,  Les  fonde- 
ments  de  1'induction;  REY,  Lecons  de  psychologic  et  de  philosophic, 
p.  312;  GEYSER,  Naturerkenntniss  und  Kausalgesetz;  TIRAQUELLUS, 
Tract,  cessante  causa  cessat  effectus. 

XENOPOL,  La  causality  dans  la  succession,  in  Revue  de  Synthese  his- 
torique  (1903),  p.  274;  SIMIAND,  Me"thode  historique  et  science  sociale; 
G.  VAILATI,  Sull'  applicability  di  concetti  di  causa  e  di  effeti  nelle 
scienze  storiche,  in  Rivista  italiana  di  sociologies,  VII  (May-June, 
1903);  PARETO,  Cours  d'economie  politique,  §§  591-600,  Systemes 
socialistes;  vol.  I,  pp.  15,  81;  PELLIS,  La  philosophic  de  la  me"canique 
(1888);  MENGER,  Untersuchungen  uber  die  Methode  in  den  Social- 
wissenschaften  (1881). 


CHAPTER  II 
BIOLOGY  AND  LAW 

§  1.    JURIDICAL  FACTS  NOT  BY  NATURE  BIOLOGICAL 

§  1.  Juridical  Facts  Not  by  Nature  Biological.  "From 
nature  which  is  already  history,  one  may  pass  without  a 
break  to  human  nature  which  is  an  extension  of  nature." 
This  is  not  a  rash  assertion.'  The  great  history  of  life  be- 
gan before  humanity  and  is  continued  in  it.  The  destiny 
of  man  is  no  doubt  of  a  peculiar  nature,  but  he  owes  his 
prosperity  to  former  stages  of  evolution.  Still  now  and  in 
the  future,  his  psychology,  his  morality,  and  his  customs 
depend  and  will  depend  in  part  upon  the  same  physiolog- 
ical causes  which  influence  other  living  beings.  Biology  is 
indispensable  to  the  study  of  primitive  man,  of  our  orig- 
inal institutions,  and  of  contemporaneous  and  civilized 
humanity. 

There  exist  quite  a  number  of  biological  phenomena 
which  are  the  causes  of  juridical  facts;  but  the  juridical 
facts  are  not  by  nature  biological  phenomena.  Each  of 
these  two  propositions  has  been  and  is  still  misunder- 
stood by  certain  groups  of  modern  sociologists. 

1:  MONISTIC  CONCEPTION  OF  UNIVERSE  A  SOURCE  OF 
CONFUSION.  The  majority  of  those  who  have  tried  to 
merge  law  and  sociology  into  the  science  of  animate  na- 
ture, without  taking  into  account  the  fact  that  the  for- 
mer is  concerned  with  immaterial,  and  the  latter  with 
material  things,  have  been  led  into  this  error  through  a 
monistic  conception  of  the  universe. 

It  would  be  very  beautiful  from  an  aesthetic,  and  very 
convenient  from  an  intellectual  point  of  view,  for  the  uni- 
verse to  form  a  harmonious  whole,  obedient  to  the  same 

76 


§  1  ]      JURIDICAL  FACTS  NOT  BIOLOGICAL      77 

laws  and  comprehensible  by  the  same  methods.  General 
ideas  are  generous  ideas,  some  one  has  said.  Those  who 
have  thought  that  they  have  found  in  animate,  and  even 
in  inanimate  nature,  the  laws  of  moral  thought  are  not 
to  blame;  the  less  so,  since  they  are  perhaps  right.  Their 
belief  presents  some  appearance  of  truth,  we  might  even 
say,  it  seems  probable.  But  it  is  a  metaphysical,  rather 
indeed  a  religious  belief,  however  pantheistic  or  material- 
istic. It  results  not  from  observation  of  facts,  but  from  a 
general  need  of  humanity  to  ascend  by  an  act  of  faith  to 
the  first  causes  which  logic  cannot  attain. 

Moreover  the  heroic  age  of  socio-biology  is  past.  The 
splendid  exaggerations  of  former  days  have  been  aban- 
doned. One  avoids  speaking  of  society  as  an  "animal"; 
one  says  "organism,"  or  even  "superorganism,"  which  is 
no  longer  compromising. 

Hardly  anyone  is  concerned  any  longer  with  social 
anatomy  and  histology.  Social  and  moral  facts  are  ac- 
knowledged to  be  facts  of  a  special  nature;  facts  belong- 
ing to  a  life  which  presents  itself  to  us  under  a  more  com- 
plex form  and  which  must  be  observed  by  appropriate 
methods. 

But  can  we  not  point  out  by  simple  observation,  without 
an  "a  priori"  affirmation  of  the  unity  of  science,  phe- 
nomena in  the  moral  and  juridical  world  which  present 
the  same  characteristics  as  those  in  the  world  of  animal 
life?  The  resemblance,  the  identity,  is  such  that  we  are 
obliged  to  employ  the  same  vocabulary  to  designate  them. 
Thus  minerals,  vegetables,  animals  and  men  are  equally 
capable  of  "becoming  associated."  The  terms  "differen- 
tiation," "adaptation,"  "struggle  for  existence,"  "parasit- 
ism," "division  of  labor,"  etc.,  may  apply  to  certain 
conditions  of  human  thought  as  well  as  to  acts  of  material 
life.  In  the  list  of  verbal  substantives,  many  thus  indicate 
processes  that  are  at  the  same  time  biological  and  moral. 

It  is  certain  that  the  single  fact  that  one  and  the  same 


78  BIOLOGY   AND   LAW  [CH.  II 

term  is  applicable  to  various  phenomena  proves  that  they 
all  possess  a  like  element.  This  similarity  is  to  a  great 
extent  purely  subjective  and  is  very  often  only  a  ques- 
tion of  words.  The  proof  of  this  is  the  difficulty  which 
one  has  in  keeping  on  firm  ground  when  such  compari- 
sons are  made. 

The  eloquent  lecture  once  delivered  by  Professor  Gide 
at  Lausanne  upon  Social  Parasitism  has  not  made 
me  change  my  ideas  in  this  respect.  If  my  memory  is 
correct,  his  definition  of  "parasite"  was  broad  to  the 
point  of  exaggeration.  Whoever  did  not  exactly  fulfill  all 
of  his  social  obligations,  or  procured  for  himself  an  ad- 
vantage to  the  prejudice  of  others,  fell  into  this  category. 
Anyone  who  lounged  around  all  the  morning,  bought  a 
paper  and  went  to  dine  at  a  restaurant  was  the  parasite 
of  the  newsdealer  and  of  the  restaurateur,  for  while  he 
was  doing  nothing,  they  had  worked  to  furnish  him  with 
the  wherewithal  of  living.  Now  the  restaurant  keepers, 
the  best  judges  in  the  matter,  are  hardly  of  this  opinion 
and  care  little  what  their  patrons  have  been  doing.  The 
paradox  was  due  precisely  to  the  employment-  of  the 
same  vocabulary  in  different  domains,  to  the  comparison 
of  situations  which  are  not  absolutely  the  same.  Instead 
of  synthesizing  them  under  an  ambiguous  expression,  it 
would  be  better  to  resort  to  the  analytical  method  which 
would  lead  to  a  distinction  between  the  several  kinds  of 
social  and  moral  parasitism.  The  heir  who  spends  his 
fortune  lavishly  is  not  the  parasite  of  arty  of  those  whom 
he  pays.  That  is  more  than  certain.  But  is  he  not  the 
parasite  of  his  family  or  of  society?  This  is  the  real  ques- 
tion. 

I  do  not  say  that  it  is  prohibitive  for  one  to  make  com- 
parisons between  biological  ideas  and  moral  characteris- 
tics under  the  same  term,  provided  it  is  stated  precisely 
what  deduction  is  expected.  No  doubt,  the  dodder  which 
sinks  its  suckers  into  the  stem  of  the  clover,  the  swindler 


§  l  ]     JURIDICAL  FACTS  NOT  BIOLOGICAL       79 

who  exploits  the  credulity  of  the  public,  and  the  bon-vi- 
vant  who  squanders  the  inheritance  left  him  by  his  father 
are  in  analogous  situations.  But  is  there  really  a  com- 
mon element  in  the  cause  of  these  different  phenomena,  a 
certain  tendency  of  every  being  which  lives  under  certain 
conditions,  to  economize  his  own  effort  and  make  his  own 
existence  dependent  upon  the  labor  of  others?  I  do  not 
know  upon  what  an  affirmative  reply  would  be  based. 
From  similarity  of  appearance,  we  cannot  deduce  identity 
of  nature. 

Is  it  therefore  a  good  plan  to  utilize  these  resemblances 
in  the  study  of  phenomena?  To  draw  conclusions  in  re- 
gard to  the  characteristics  of  social  parasitism  from  those 
of  biological  parasitism?  Mr.  Gide  takes  care  to  point 
out  the  danger  of  this.  According  to  him,  one  profits  by 
the  exploitation,  while  the  other  falls  into  decay  thereby. 
Nevertheless  one  can  seek  hypotheses  there  as  elsewhere. 

2:  BIOLOGICAL  PHENOMENA  AS  MATERIAL,  SOCIAL, 
AND  PSYCHOLOGICAL  FACTORS  IN  HUMAN  LIFE.  We  by 
no  means  therefore  ask  of  biology  analogies  that  are  more 
or  less  symbolic  as  regards  the  interpretation  of  the  his- 
tory of  institutions.  When  we  discover  in  the  various 
domains,  division  of  labor  or  some  other  process  of  the 
same  kind,  it  is  a  matter  of  indifference  to  us.  We  draw 
from  it  no  practical  nor  philosophical  conclusion.  On  the 
contrary,  biological  realities,  to  which  man  remains  sub- 
ject in  so  far  as  he  is  an  animal,  compel  recognition  in  our 
method,  if  they  have  any  influence  in  the  formation  of 
the  law. 

Of  these  phenomena  which  act  in  identically  the  same 
way  from  a  material  point  of  view  among  men  and  ani- 
mals, three  great  classes  may  be  noted:  cold,  heat,  abun- 
' dance,  scarcity,  and  the  nature  of  food,  influence  equally 
all  living  creatures.  Reproduction  follows  the  same  laws: 
heredity,  transmission  of  essential  or  accidental  charac- 
teristics, effect  of  a  mixture  of  blood,  and  importance  of 


80  BIOLOGY   AND    LAW  [Cn.  II 

race.  Finally,  history  of  mankind  like  that  of  animals  is 
made  by  the  continual  elimination  of  certain  groups  and 
certain  individuals  by  disease,  and  in  the  case  of  man,  by 
crimes  and  civil  and  international  wars. 

But  have  these  biological  facts  a  sociological  and  a  psy- 
chological influence?  Should  sociology  and  accordingly 
legal  history  take  them  into  account?  This  has  been 
contested,  in  more  or  less  decided  terms;  absolutely  as  far 
as  race  and  heredity  are  concerned,  more  indirectly,  in 
regard  to  other  questions.  Three  types  of  intellectual 
tendencies  lead  to  the  rejection  of  the  biological  influence 
(the  likening  of  man  to  animals),  even  in  the  material 
facts  which  we  have  pointed  out. 

(1)  Idealism   sees  in  man   a  being    essentially  free, 
moral  and  intellectual.     His  psychological  life  is  almost 
exempt  from  any  physiological  yoke.    The  world  of  ideas 
is  independent  of  the  physical  constitution;  it  is  open  to 
all  who  try  to  deserve  it  by  a  little  effort.    All  men  have 
worth,  and  have  more  or  less  the  same  natural  predisposi- 
tions.   No  doubt,  they  may  owe  something  to  race  and  a 
little  to  their  immediate  progenitors,  because  they  have 
the  power  of  understanding  what  is  right  and  of  reacting 
against  their  temperaments.    Institutions  are  established 
with  an  ideal  in  view;  the  judge  and  the  legislator  partic- 
ularly are  freed  from  all  physical  pressure.    These  ideas 
are  not  as  out  of  date  as  one  might  suppose.     Moral  or 
political  considerations  have  maintained  them  in  science. 
Thus  it  has  been  maintained  quite  recently  that  biolog- 
ical influences  have  the  essentially  strange  property  of 
keeping  men  united  without  ever  tending  to  separate 
them. 

(2)  Durkheim's  school  does  not  have  the  same  illusions 
in  regard  to  human  individuals.    In  so  far  as  he  is  an  in- 
dividual, everyone  is  dependent  upon  heredity  and  en- 
dures its  consequences.     But  neither  the  law,  nor  any 
other  social  fact,  is  individual,     It  is  the  product  of 


§  1  ]     JURIDICAL  PACTS  NOT  BIOLOGICAL       81 

the  group.  Thought  which  emanates  from  the  group  is 
freed  from  any  physiological  influence  since  it  emanates 
from  other  thoughts  and  not  from  an  organic  body.  Ac- 
cordingly, race  has  no  influence  upon  institutions.  White, 
yellow  or  black  peoples,  at  the  same  stage  of  development 
and  placed  under  the  same  conditions,  would  produce 
exactly  the  same  law,  and  yet  in  their  private  psychology 
they  remain  entirely  white,  yellow  or  black. 

(3)  Finally,  a  third  class  of  writers  neglect  the  bio- 
logical factor  in  history  because  it  would  be  too  compli- 
cated to  take  it  into  account.  Races  especially  are  so 
mixed  that  it  is  impossible  to  reestablish  even  their  re- 
mote filiation,  and  their  psychological  characteristics  are 
so  little  apparent  that  there  is  no  method  by  which  they 
can  be  determined  at  all  accurately.  All  attempts  in 
this  direction  have  been  fruitless.  Under  penalty  of 
wandering  astray,  such  efforts  must  be  abandoned. 

None  of  these  three  courses  of  argument  is  convincing 
to  us:  (1)  The  logical  consequence  of  the  idealist  theory 
would  be  the  complete  separation  of  the  soul  and  the 
body.  In  order  to  react  against  the  physiological  in- 
fluence, it  is  necessary  first  to  recognize  it,  to  judge  it 
evil,  and  to  have  an  ideal  which  is  not  even  the  product 
of  its  peculiar  nature.  Education  and  personal  effort  have 
some  influence  upon  the  nature  of  an  individual ;  but  they 
are  not  all  powerful. 

(2)  The  second  thesis,  which  supposes  the  identity  of 
collective  thought  among  all  peoples,  creates  from  par- 
ticles of  real  things,  a  thing  that  is  neutral,   abstract 
and  devoid  of  character.     Individual  characteristics  be- 
come combined  in  the  mass  but  are  not  lost  in  it.  Thoughts, 
actions,  and  laws  produced  by  a  crowd  of  intoxicated  men 
will  bear  the  trace  of  the  intoxication  which  affects  each 
individual. 

(3)  Finally,  to  those  who  are  dismayed  at  the  difficulty 
of  computing  the  physiological  element  in  human  life,  it 


82  BIOLOGY  AND  LAW  [Cn.  II 

is  enough  to  answer  that  we  ought  to  take  history  as  it 
is  and  not  as  we  should  like  it  to  be  to  suit  our  particular 
convenience.  Whatever  is,  is.  We  exert  all  our  efforts 
toward  understanding  it,  but  we  do  not  guarantee  that 
we  shall  succeed  in  the  attempt.  The  role  of  history 
like  that  of  all  science  is  to  recognize  clearly  the  gaps, 
not  to  conceal  them. 

We  must  now  state  precisely  in  what  way  the  biological 
phenomena  exhibited  in  humanity  are  able  to  influence 
its  law. 

BIBLIOGRAPHY 

HERBERT  SPENCER,  Principles  of  Sociology,  bk.  II;  WORMSI 
Organisme  et  socie'te';  PAUL  DE  LILIENFELD,  Gedanken  uber  die 
Socialwissenschaft  der  Zukunft,  La  Pathologic  sociale;  F.  KRAUS, 
Der  Volkertod  (1903);  Novicow,  Conscience  et  volonte"  sociale; 
SCHAFFLE,  Bau  und  Leben  des  sozialen  Korpers,  Abriss  der  Sozio- 
logie  (1906). 

HAECKEL,  Glaubensbekenntniss  eines  Naturforschers  (1902),  Die 
Weltrathsel,  Gemeinverstandliche  Studien  iiber  monistiche  Philoso- 
phic; Constitution  of  the  deutsche  Monistenbund,  in  the  Wochen- 
schrift  fur  offentliches  Lfben,  Litteratur  und  Kunst;  Freien  Glocken, 
Wochenschrift  zur  Forderung  der  monistischen  Vtrnunftreligion;  Der 
Kampf  um  die  Entwicklungsgedanken  (1905). 

Literature  of  the  Congress  at  Jena,  among  others;  SCHALLMAYER, 
Vererbung  und  Auslese;  KUHLENBECK,  Natiirliche  Grundlagen  des 
Rechts  und  der  Politik;  WOLTMAN,  Politische  Anthropologie; 
MATZAT,  Philosophic  der  Anpassung;  DR.  B.  RAWITZ,  Urgeschichte, 
Geschichte  und  Politik;  Politische-anthropologische  Revue. 

OTTO  AMMON,  L'Ordre  social;  DR.  P.  JACOBY,  Etudes  sur  la  se"- 
lection  chez  1'homme  (1904);  DE  LAPOUGE,  Les  Selections  sociales; 
ESPINAS,  Postulat  de  la  Sociologie,  in  Revue  philosophiquc  (1901), 
I,  p.  449;  BOURDEAU,  Les  problemes  de  la  vie;  DAGEHOT,  Lois  scien- 
tifiques  du  developpement  des  nations. 

GOBLOT,  Essai  sur  la  classification  des  sciences  (1898);  G.  o'Acu- 
ANNO,  Le  Genesi  e  1'evoluzione  del  diritto  civile  (1894) ;  COGLIOLO, 
Essai  sur  1'evolution  du  droit  prive",  La  the'orie  de  Involution  dar- 
winiste  dans  le  droit  prive1;  LETOURNEAU,  Evolution  juridique; 
HARTMANN,  Die  historische  Entwickelung. 

FOUILLEE,  Le  mouvement  positiviste  et  la  conception  sociologique 
du  monde  (1898);  GRASSET,  Les  limites  de  la  biologic  (2d  ed.,  1903); 


§  l  ]      JURIDICAL  PACTS  NOT  BIOLOGICAL       83 

BOUGLE,  La  sociologie  biologique  et  le  regime  des  castes,  in  Revue 
philosophique  (1900);  Le  proces  de  la  biosociologie,  in  Revue  philo- 
sophiqut  (1901),  II,  p.  121;  La  democratic  devant  la  science  (1904); 
P.  LACOMBE,  Nature  et  humanite,  in  Revue  de  synthese  historique, 
vol.  XI,  p.  15;  MAGRI,  Le  basi  organiche  dello  stato  et  della  demo- 
crazia. 


CHAPTER  III 
RACE  AND  THE  LAW 

§  1.  INFLUENCE  OF  RACE  ON  LEGAL  INSTITUTIONS  (1)  THEORY 
THAT  RACE  IS  FOREIGN  TO  INSTITUTIONS;  (2)  THEORY  THAT 
RACES  ARE  REPRESENTATIVE  OF  INSTITUTIONS;  (3)  THEORY 
THAT  RACE  IS  THE  CREATOR  OF  INSTITUTIONS;  (4)  CONCLU- 
SIONS. 

§  1.  Influence  of  Race  on  Formation  of  Legal  Institu- 
tions. There  is  little  mention'of  races  in  the  history  of  law ; 
and  some  think  there  should  be  still  less.  For  when  at 
times  an  attempt  is  made  to  explain  a  certain  peculiarity 
in  the  law  of  a  people  by  their  racial  characteristics,  the 
explanation  does  not  endure  long.  A  little  later  the  same 
peculiarity  may  be  discovered  among  a  very  different 
people  that  has  never  been  associated  with  the  former  in 
any  way.  General  history  gives  a  more  positive  character 
to  its  studies  by  individualizing  by  means  of  race,  the 
groups  of  human  beings  whose  acts  relate,  since  these 
are  different  beings  who  have  done  different  things.  But 
the  historian  of  the  law  who  deals  with  abstract  questions 
in  time  (rules  of  conduct  which  have  in  them  no  element 
of  the  corporeal)  ought  to  be  indifferent  to  the  shape  of 
skulls,  all  the  more  so  since  experiences  demonstrate  that 
given  the  same  conditions,  men  nearly  always  do  the 
same  thing.  The  idea  of  race  would  therefore  be  from 
this  point  of  view  not  only  useless  but  dangerous. 

This  is  highly  possible.  It  is  nevertheless  indispensable 
to  state  precisely  all  that  is  implicitly  affirmed  by  the 
historian-jurist  who  prohibits  himself  from  pronouncing 
the  word  "race."  Evidently  he  should  affirm  first  of  all 
that  race  is  not  a  factor  in  the  creation  of  the  law.  For 

84 


§1]  INFLUENCE   OF   RACE  85 

him,  nothing  in  our  physical  constitution  could  make  us 
prefer  one  institution  to  another.  One  is  not  born  a 
republican  or  a  monarchist,  he  becomes  so  by  reflection 
or  education.  At  no  time  in  history  ought  we  to  suppose 
that  a  people  faced  with  a  juridical  difficulty  settled  it  in 
one  way  because  it  was  dolichocephalic  and  would  have 
settled  it  quite  otherwise  if  it  had  been  brachycephalic. 
By  nature,  men  and  groups  of  men  are  fungible  juridical 
beings. 

But  more  must  be  affirmed.  Let  us  grant  that  between 
race  and  institutions  there  is  no  causal  relation.  But 
these  two  ideas,  originally  foreign  to  one  another,  have  be- 
come connected  historically,  so  that  certain  races  which 
might  have  had  entirely  different  institutions,  have  never- 
theless had  those  of  a  certain  type  and  have  associated 
them  with  their  reverses  and  their  prosperity.  Have  not 
races  which  we  suppose  never  to  have  been  makers  of 
institutions,  been  representatives  of  institutions?  To  ex- 
clude the  idea  of  race  from  the  history  of  the  law,  this 
must  be  answered  in  the  negative. 

This  important  question  divides  our  sciences  into  three 
schools  with  the  following  principles  respectively : 

(1)  Race  is  totally  foreign  to  institutions. 

(2)  Races  have  been  representatives  of  institutions. 

(3)  Race  is  the  creator  of  institutions. 

(1)  Theory  that  Race  is  totally  Foreign  to  Institu- 
tions. By  their  method,  the  great  majority  of  modern 
scholars  belong  to  the  first  school.  In  their  works  races 
are  like  pawns  in  a  game  of  chess;  they  derive  all  of  their 
power  from  the  place  which  they  occupy,  their  individu- 
ality is  of  little  importance.  If  the  ethnological  elements 
of  a  nation  become  modified,  no  account  of  the  fact  is 
taken;  it  is  none  the  less  the  same  nation,  the  same  con- 
stitution, the  same  law  which  lives  and  is  developed  be- 
fore us.  The  Roman  Law  is  thus  studied  as  a  whole, 


86  RACE   AND   THE   LAW  [Cn.  Ill 

without  taking  into  account  either  the  diversity  of  the 
original  races,  or  the  diversity  of  the  peoples  who  became 
merged  in  the  great  city.  If  those  who  argue  thus  were 
called  upon  to  justify  this  method,  they  might  not,  per- 
haps, answer  in  exactly  the  same  way. 

Some  consider  that  law  is  to  a  people  what  age  is  to 
individuals.  Man  is  a  child,  an  adult,  or  an  old  person, 
whatever  his  race.  Thus  from  infancy  to  old  age,  all 
civilizations  go  through  the  same  vicissitudes.  The  phys- 
ical and  moral  changes  which  we  undergo  in  life  are 
identical  for  all  men.  Whoever  knows  one  human  life 
knows  the  broad  outlines  of  every  human  life,  and  whoever 
knows  the  evolution  of  one  system  of  law  knows  the  evo- 
lution of  all  systems.  Between  legislations  there  is  a 
difference  of  age,  not  a  difference  of  nature,  and,  accord- 
ingly, not  a  difference  of  race. 

To  what  extent  is  this. an  accurate  comparison?  All 
men  are  not  of  the  same  age,  because  they  did  not  come 
into  existence  at  the  same  time.  But  one  cannot  under- 
stand why  all  the  peoples,  at  a  given  period,  upon  the 
surface  of  the  earth  have  not  grown  up,  prospered,  and 
grown  old  at  the  same  time.  Is  it  not  the  inequality  of 
physical  constitution  and  of  mental  capacity  which  re- 
tains some  in  their  primitive  customs  for  centuries,  while 
others  develop  rapidly? 

Let  us  admit  that  there  may  be  nothing  in  this,  that 
peoples  follow  the  same  juridical  road,  and  that  it  may  not 
be  their  race  which  makes  them  progress  with  greater  or 
less  speed.  It  is  none  the  less  incontestable  that  the 
respective  degrees  of  speed  are  very  unequal,  and  that 
advanced  races  have  been  thrown  into  contact  with  re- 
tarded races.  What  has  happened  then?  Has  the  ju- 
ridical phenomenon  remained  independent  of  this  ethno- 
logical phenomenon? 

Other  jurists  who  are  opposed  to  the  theory  of  races 
run  against  the  same  difficulty,  but  reach  it  by  another 


§1]  INFLUENCE   OF   RACE  87 

road.  Humanity  as  a  whole,  think  they,  has  the  same 
juridical  predisposition,  and  if  different  peoples  do  not 
create  exactly  the  same  law,  it  is  because  they  are  placed 
in  different  circumstances;  they  do  not  encounter  the  same 
difficulties.  The  peoples  among  whom  women  were 
scarcest  and  who  had  the  most  trouble  in  keeping  them, 
became  the  first  monogamists;  sedentary  peoples,  those 
desirous  of  not  becoming  separated  from  one  center,  and 
for  whom  land  thus  situated  had  a  particular  value, 
adopted  private  ownership  of  land.  The  law  being  thus 
explained  in  its  entirety  by  exterior  circumstances,  we 
have  nothing  to  do  with  race.  Whether  there  had  been 
originally  negroes  or  Chinese  in  the  valley  of  the  Po  or 
the  Tiber,  Roman  civilization  and  the  evolution  and  the 
modification  of  its  law  would  have  appeared  under  the 
same  forms. '  To  the  latter  of  these  theorists,  we  shall 
put  the  same  question.  As  a  result  of  the  different  situ- 
ations in  which  they  have  been  placed,  two  races  have 
different  laws;  and  chance  throws  them  into  contact; 
what  will  be  the  result  ? 

Is  it  imaginable  that  the  fusion,  the  juxtaposition,  the 
action  upon  one  another  of  two  legal  systems  is  a  purely 
intellectual  phenomenon  in  which  race  is  a  foreign  element  ? 
Are  the  most  advanced  concepts,  or  rather  those  best 
suited  to  the  circumstances,  going  to  triumph  perforce 
unless  the  groups  thus  juxtaposed  become  physiologically 
merged?  Did  the  " conf arreatio "  disappear  as  a  form  of 
Roman  marriage  because  the  patricians,  without  change 
of  race,  detached  themselves  from  their  traditions?  or 
must  we  believe  that  patricians  of  more  recent  birth  no 
longer  had  the  same  ancestral  purity  of  blood  ?  Were  the 
old  Romans  capable  of  adopting  all  the  innovations  simply 
through  interest  or  reflection,  and  was  it  possible  for  the 
new-comers  to  become  educated  in  the  traditional  spirit 
and  to  preserve  all  of  its  good  elements?  If  so,  the  origin 
of  the  masses  which  influence  the  elaboration  and  inter- 


88  RACE   AND   THE    LAW  [CH.  Ill 

pretation  of  the  law  is  irrelevant.  Every  one  is  qualified 
to  work  upon  the  edifice  whose  plan  is  arranged  beforehand 
in  the  human  reason. 

This  point  is  very  difficult  to  admit  unconditionally. 
Observation  establishes  it  as  an  incontestable  fact  that 
man  possesses  a  certain  conscious  or  unconscious  attach- 
ment for  his  institutions,  an  attachment  of  greater  or  less 
strength  according  to  the  branch  of  the  law  in  question 
and  the  tenacity  of  the  people  concerned.  So  that  under 
the  form  of  a  reasonable  discussion,  true  racial  struggles 
are  carried  on  between  peoples  of  diverse  origin;  and  we 
shall  not  at  all  understand  their  internal  dissensions  with- 
out a  knowledge  of  this  difference  of  origin.  Moreover,  the 
progressive  as  well  as  the  conservative  spirit  may  depend 
upon  race.  When,  through  admiration  of  other  institu- 
tions, a  people  changes  its  own,  this  is  because  it  happens 
to  be  in  a  certain  state  of  mind  due  to  its  past,  and  another 
people  put  in  its  place  would  not  act  as  it  does.  The 
power  of  reasoning  "in  abstracto"  without  prejudice,  of 
detaching  oneself  from  the  past,  is  not  given  to  all.  It 
is  again  a  question  of  race. 

So  true  is  this  that  even  granting  everything  that 
could  be  asked  by  the  deniers  of  race,  and  in  spite  of  every 
effort  to  reduce  its  role  to  the  lowest  minimum,  it  remains 
none  the  less  an  established  fact  that  a  juridical  history 
which  neglects  race  condemns  itself  to  an  incomplete  inter- 
pretation of  causes. 

(2)  Theory  that  Races  have  been  Representatives  of  In- 
stitutions. There  are,  then,  groups  which  have  represented 
in  history  certain  juridical  forms.  Whoever  adopts  a  lan- 
guage becomes  an  agent  of  its  propagation;  whoever 
adopts  manners  or  customs  tends  to  make  them  known 
and  widespread.  At  every  stage  of  its  history,  humanity 
has  presented  varied  aspects  in  this  regard.  It  is  perhaps 
given  to  us  to  consider  civilized  laws  as  the  development  of 
one  and  the  same  primitive  custom;  but  the  ancient 


§1]  INFLUENCE   OF   RACE  89 

peoples  little  suspected  this  and  believed  themselves  the 
real  owners  of  their  institutions.  They  were  proud  of 
them  and  clung  to  them  tenaciously;  for  they  attributed 
their  origin  either  to  divine  favor,  or  to  the  wisdom  of 
their  ancestors.  The  history  of  laws  cannot  be  detached 
from  the  history  of  the  groups  which  have  represented 
these  laws. 

Now  down  to  quite  recent  times  these  groups  have  been 
racial.  Juridical  unity  accords  with  ethnological  unity. 
Even  when  several  races  are  united  to  form  a  nation,  each 
one  preserves  its  own  customs  and  it  is  only  by  degrees 
that  a  fusion  is  effected.  Is  such  a  fusion  ever  completely 
effected?  It  has  not  been  proved  that,  even  among  the 
most  unified  peoples,  those  subjected  since  the  earliest 
times  to  the  same  texts,  tradition  is  entirely  extinct,  and 
that  each  race  does  not  make  of  these  texts  its  own  pe- 
culiar uses.  In  any  case  there  can  be  no  doubt  of  this  as 
regards  the  past.  The  principle  of  the  personality  of  laws 
permits  each  primitive  group  to  represent  its  traditions 
within  the  nation;  the  system  of  territoriality  results 
either  in  a  fusion  of  blood  of  the  different  elements,  or  in 
coercion  by  the  rulers  who  impose  their  own  legal  concep- 
tions upon  the  subject  races.  In  this  last  instance,  the 
subject  races  react  and  succeed  in  obtaining  the  recogni- 
tion of  their  usages.  These  local  customs  become  gradu- 
ally fused  into  more  and  more  general  customs.  The  role 
of  race  seems  to  become  reduced  to  nothingness.  But 
even  when  one  law  absorbs  another,  this  phenomenon  of 
fusion  cannot  become  detached  from  the  respective  his- 
tory and  psychology  of  those  who  were  the  participants, 
actively  or  passively. 

(3)  Theory  that  Race  has  been  the  Creator  of  Institu- 
tions. Let  us  propound  one  last  question,  the  most  doubt- 
ful and  also  the  most  important.  Each  human  race  has 
its  own  particular  physiological  aspect  and  we  attribute 
to  each  race  certain  intellectual  and  moral  tendencies ;  has 


90  RACE  AND  THE  LAW  [CH.III 

it  likewise  particular  juridical  tendencies,  —  a  law  which  is 
its  own,  not  simply  because  circumstances  have  made  it 
so,  but  because  it  is  best  adapted  to  its  psychology?  Is 
race  a  factor  in  institutions  ? 

Logic  seems  to  say  "Yes,"  experience  "No."  The  law 
being  a  product  of  thought,  if  the  race  influences  thought, 
it  ought  likewise  to  influence  juridical  concepts.  And  yet 
we  cannot  at  the  moment  point  out  an  institution  pecu- 
liar to  one  race,  which  it  has  always  and  others  never 
had.  Neither  does  it  seem  to  be  any  more  firmly  estab- 
lished that  the  laws  of  related  races  are  always  more  alike 
than  are  those  of  races  totally  foreign  to  one  another. 

To  be  candid,  no  important  conclusion  can  be  drawn 
from  these  considerations.  Blood,  heredity,  and  physical 
structure  do  not  constitute  the  only  juridical  factors.  The 
most  unquestioned  agents  in  the  creation  of  the  law  never 
act  alone,  nor  do  they  always  act  with  the  same  degree  of 
energy.  Thus  the  inhabitants  of  mountains  and  those  of 
plains  have  institutions  with  no  more  permanent  charac- 
teristic traits  than  can  be  found  anywhere  and  at  all  times. 
Juridical  comparisons  conducted  according  to  strict  logic 
and  with  great  regard  for  detail,  are  evidently  necessary 
to  discover  the  race-factor.  It  is  necessary  to  inquire 
with  logical  rigor  whether  anything  varies  or  whether 
anything  is  common  when  the  race  is  common,  and  to 
observe  as  much  as  possible  groups  which  are  found  to  be 
in  the  same  or  a  very  similar  state  of  civilization.  Infants 
and  infant  peoples  seem  to  resemble  one  another  very 
closely  and  to  be  very  different  from  old  persons  and  old 
peoples.  And  yet  every  one  of  these  infants  could,  in  the 
diverse  phases  of  its  life,  recall  what  one  of  these  old 
peoples  was  at  the  same  age;  and  not  what  another  was. 
Thus  ought  we  to  compare  civilization  and  legislation  by 
taking  into  account  the  age  of  the  peoples. 

If  they  exist,  these  juridical  characteristics  of  the  races 
may  not  be  as  plain  as  the  nose  on  the  face,  in  the  form 


§1]  INFLUENCE   OF   RACE  91 

of  a  particular,  complete  institution,  the  exclusive  prop- 
erty of  a  certain  system  of  law.  Every  legal  system  is  a 
combination  of  institutions,  just  as  every  man  is  a  com- 
bination of  intellectual  and  moral  elements.  To  enu- 
merate the  various  provisions  which  the  texts  contain, 
does  not  reveal  the  true  physiognomy  of  a  law.  A  certain 
trait  of  character  may  be  preponderant  in  the  direction 
of  our  life;  the  same  institution  may  be  met  with  in  two 
different  legislations,  but  play  a  very  modest  part  in  one 
and  an  important  and  over-riding  part  in  the  other.  The 
idea  of  caste  dominates  all  the  elements  of  the  Hindu 
law,  and  that  of  composition,  the  German  "leges."  Even 
in  our  modern  codes,  compiled  at  a  time  when  theoreti- 
cally everything  that  the  legislator  willed  is  presumed  to 
have  the  same  force,  provisions  are  far  from  being  of  the 
same  practical  vigor,  and  equality  of  laws  is  as  much  a 
fiction  as  equality  before  the  law.  It  is  advisable,  there- 
fore, to  compare  legislations  not  only  in  their  content  but 
in  their  synthetic  physiognomy. 

It  may  be  feared  that  it  is  difficult  to  substantiate  this 
aspect  of  institutions,  materially  and  objectively.  Let  us 
then  study  the  texts  in  their  concrete  provisions,  but 
study  them  with  regard  to  the  most  minute  analytical  de- 
tails. An  institution  observed  in  its  general  outlines  may 
appear  to  us  identical  in  several  countries,  but  subjected 
to  the  microscope  of  analysis,  it  will  seem  to  express  very 
different  desires  and  tendencies.  Thus  the  French,  the 
German,  the  English,  and  the  Spanish  systems  of  feudal- 
ism arise  at  the  same  epoch,  play  apparently  analogous 
parts  and  correspond  to  certain  common  juridical  prin- 
ciples; but  studied  in  their  application,  they  denote  very 
different  mentalities. 

Why  do  we  imagine  that  the  characteristics  of  race  in 
institutions  are  to  be  discovered  on  this  or  that  side  of 
the  points  where  they  are  generally  sought,  —  in  the  most 
general  totality  or  in  the  smallest  detail,  and  not  in  the 


92  RACE   AND   THE   LAW  [Cn.  Ill 

most  apparent  concrete  facts?  Because  in  this  way  the 
individuality  of  everything  manifests  itself.  Men  reveal 
their  true  character  by  quite  small  traits  or  by  their  whole 
lives,  by  a  complete  description  or  by  the  imprint  of  the 
thumb.  And  (to  give  the  reason  after  the  comparison), 
in  juridical  matters,  peoples  may  adopt  constitutions  and 
laws  because  the  latter  have  a  certain  amount  of  prestige 
or  because  they  are  judged  good  from  a  rational  standpoint ; 
in  the  general  traits,  circumstances  counteract  natural 
tendency.  The  whole  and  the  details  escape  attention; 
everyone's  predispositions  develop  therein  quite  uncon- 
sciously. One  and  the  same  code  may  be  followed  by 
different  nations;  but  the  provisions  will  not  have  the 
same  chance  to  be  developed  in  each  instance,  and  in  the 
organization  of  the  innumerable  details  to  which  no  great 
importance  is  attached,  the  different  racial  temperaments 
will  be  disclosed. 

Thus  there  may  not  perhaps  be  much  of  a  chance  to 
discover  the  purely  juridical  characteristics  of  race.  The 
differentiation  will  be  rather  of  a  psycho-juridical  nature. 
Gobineau  maintains  that  the  Aryans  and  their  purest 
representatives,  the  Germans,  cherish  the  love  of  liberty 
more  than  other  races;  this  sentiment  prompted  them  in 
early  times  to  counterbalance  the  power  of  kings  by  that 
of  lords,  and  later  produced  parliamentary  and  representa- 
tive forms  of  government;  while  the  Semitic  peoples  re- 
tain (from  their  relationship  to  the  negro)  a  docility  of 
spirit  which  makes  them  flourish  better  under  despotism 
and  makes  them  instinctively  transform  the  most  liberal 
institutions  into  those  of  authority.  The  fact  may  be 
quite  as  false  as  true;  for  so  general  a  conclusion  cannot 
be  drawn  from  a  few  superficial  examples.  But  quite 
possibly  there  are  influences  of  this  kind  exercised  upon 
legislation  by  race.  That  is  to  say,  a  juridical  study  of 
races  appears  to  us  to  be  based  necessarily  upon  a  psy- 
chological study  of  races;  so  that  we  shall  be  inclined  to 


§1]  INFLUENCE  OF  RACE  93 

attribute  to  the  race  only  those  juridical  tendencies  which 
are  interpreted  psychologically.  It  would  thus  be  hardly 
probable,  for  example  —  before  a  complete  examination  of 
the  facts  —  that  tendencies  to  imperialism,  to  univer- 
sality, are,  as  Chamberlain  thinks,  the  racial  conception 
of  the  heirs  of  Rome,  while  nationalism  is  more  in  con- 
formity with  Germanic  instincts,  for  in  neither  instance 
do  we  grasp  the  element  of  individual  psychology  to 
which  such  a  tendency  might  correspond. 

(4)  Conclusions.  Possibly,  moreover,  in  the  descrip- 
tion of  each  institution  and  of  its  role  in  the  whole  body 
of  the  law  as  well  as  in  its  details,  we  should  find  nothing 
peculiar  to  the  race.  We  shall  say  that  this,  the  race,  is 
not  a  factor  in  the  concrete  law.  Juridical  forms  will 
seem  to  us  purely  intellectual,  detached  from  the  instinc- 
tive tendencies  which  differentiate  men  of  different  origin. 
They  will  be  the  product  of  general  psychological  forces 
common  to  all,  and  modified  solely  by  the  environment. 
But  even  in  this  case,  the  ethnological  factor  will  not  be 
excluded  as  a  cause  in  law,  for  although  it  may  be  power- 
less to  create  forms,  it  may  intervene  effectually  to  bring 
about  their  adoption  at  a  given  time.  If  the  stages  are 
the  same  for  all,  what  is  the  nature  of  the  power  to  pass 
them  without  stopping  or  to  prolong  them?  Let  us  sup- 
pose that,  at  some  stage  of  their  development,  all  people 
use  the  composition  (or  money-payment  to  compound 
for  a  homicide).  According  to  temperament,  they  will 
be  more  selfish  or  more  vindictive;  for  a  monetary  con- 
sideration they  will  be  more  or  less  willing  to  renounce 
vengeance,  and  will  abandon  private  vengeance  more  or 
less  readily. 

Finally,  even  if  races  are  beings  juridically  neutral,  is 
the  fact  that  they  have  remained  isolated,  or  have  become 
mingled,  without  interest  for  the  law?  Are  there  not  in- 
stitutions which  are  suitable  to  pure  races,  whatever  their 
natural  psychology,  and  others  to  mixed  races,  whatever 


94  RACE  AND  THE  LAW  [Cn.  ill 

the  elements  of  the  mixture?  The  pure  race  presents  a 
unity  of  character  and  of  ideal,  which  permits  it  to  be 
confined  within  narrower  limits,  and  to  become  solidified 
for  a  common  labor.  Peoples  of  mixed  races  appear  in 
history  as  disquieted  by  various  ideals,  incapable  of  labor- 
ing upon  a  single  work  and  able  to  prosper  only  under 
liberal  institutions.  For  such  civilizations  the  problem 
then  is  to  allow  those  natures  which  exclude  or  repel  each 
other  or  have  a  profound  and  instinctive  aversion  to  one 
another,  the  right  to  ignore  each  other  sufficiently  to  be 
able  to  live  side-by-side,  to  aid  one  another  and  even  to 
collaborate.  Here  logic  and  history  seem  to  be  in  entire 
accord. 

The  theory  of  races  and  its  application  to  the  law  merits 
a  detailed  study  if  it  is  to  give  positive  results;  up  to  the 
present  time  every  presumption  is  in  its  favor. 

BIBLIOGRAPHY 

KLEMM,  Allgemeine  Kultur  der  Menscheit  (1849);  COMTE  DE 
GOBINEAU,  Essai  sur  I'insgalite  des  races  humaines,  vol.  I,  pp.  26, 
32,  89;  vol.  II,  p.  50;  Histoire  des  Perses,  Philosophies  et  religion  de 
1'Asie  centrale:  Ce  qui  se  fait  en  Asie,  in  Revue  du  Monde  latin  (1885) ; 
PAUL  KLEINECKE,  Gobineau's  Rassentheorie;  ERNEST  SEILLI&RE, 
Le  comte  de  Gobineau  et  1'Aryanisrae  historique;  DREYFUS,  Gobin- 
isme  et  nationalisme,  in  Revue  bleue  (Feb.  25,  1905);  PR.  HERTZ, 
Moderne  Rassentheorie;  FRITZ  FRIEDRICH,  Studien  uber  Gobineau 
(1906). 

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du  volume  du  cerveau  et  du  crane,  in  Bulletin  de  la  Societe  d'anthro- 
pologie,  vol.  I,  3d  series,  p.  310,  Recherches  anatomiques  et  mathe- 
matiques  sur  les  lois  de  variations  du  cerveau  et  du  crane,  Lois 
psychologiques  de  1'evolution  des  peuples;  MANOUVRIER,  Recherches 
d'anatomie  comparative  et  d'anatomie  philosophique,  La  quantite 
dans  I'enc6phale  (1885),  L'indice  c£phalique  et  la  pseudo-sociologie, 
in  Bulletin  de  la  Sociite  d'anthropologie  (1899),  Cephalometrie  an- 
thropologique,  in  Ann'-e  psychologique  (1899);  SCHWALBE,  Einiges 
uber  moderne  Phrenologie,  Deutscher  Anthropologen-Kongress  (1906). 

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politique,  in  Revue  d'anthropologie  (1887-1888),  Selections  sociales, 


§  1  ]  INFLUENCE  OF  RACE  95 

L'Aryen;  COUNT  LEUSSE,  fitudes  d'histoire  £thnique  depuis  les 
temps  prehistoriques  jusqu'au  commencement  de  la  Renaissance 
(1899);  CHAMBERLAIN,  Die  Grundlagen  des  XlXten  Jahrhunderts, 
pp.  274,  319,  502,  510  (trans,  into  English);  KUHLENBECK,  Natur- 
liche  Grundlagen  des  Rechts  und  der  Politik,  bk.  II,  chap.  IV,  Zur 
Kritik  des  Rassenproblems,  in  Archiv  fur  Rassen-  und  Gesellschafts- 
Biologie  (July- Aug.,  1905);  WOLTMANN,  Politische  Anthropologie, 
chap.  IV;  REIBMAYR,  Ueber  den  Einfluss  der  Inzucht  und  Vermisch- 
ung  auf  den  politischen  Karakter  einer  Bevolkerung,  in  Politische 
Anthropologische  Revue,  I,  pp.  1-21,  seq.;  WIRTH,  Volksthum  und 
Weltmacht. 

WEISSMANN,  Essays  on  Heredity;  DELAGE,  L'heredite;  DE  VRIES, 
Mutation  Theory;  RICHARD  SEMON,  Die  Mneme,  als  erhaltendes 
Prinzip  im  Wechsel  des  organischen  Geschehens;  FOREL,  La  question 
sexuelle,  pp.  13,  28;  KRAEMER,  Die  Kontroverse  uber  Rassenkon- 
stanz  und  Individualpotenz,  Reinzucht  und  Kreuzung  im  Lichte  der 
biologischen  Forschungen  historisch  und  kritisch  betracht  (Bern, 
1905);  A.  GAUTHIER,  Mecanisme  de  la  variation  des  etres  vivants. 

DESCHAMPS,  Etudes  des  races  humaines  (1857-1859);  DE  QUATRE- 
FAGES,  Du  croisement  des  races  humaines,  in  Revue  des  Deux  Mondes 
(Mar.,  1857),  Introduction  a  1'etude  des  races  humaines  (1889); 
HOUSE,  Sur  les  caracteres  physiques  des  races  europeennes;  RATZEL, 
Volkerkunde;  FINOT,  Le  prejug6  des  races  (1905),  pp.  49,  50,  69, 
387,  393;  Novicow,  L'avenir  de  la  race  blanche,  pp.  74,  79;  ANTON 
NYSTRON,  L'anthropologie  et  1'histoire;  REINACH,  in  Revue  archeo- 
logique  (1904),  p.  152. 

Various  articles  in:  Archiv  fur  Rassen  und  Gesellschafts-Biologie; 
Politische  anthropologische  Revue;  Rivista  italiana  di  sociologies; 
L'A  nthropologie;  Revue  de  Synthese  historique. 

WOLTMANN,  Die  Germanen  und  die  Renaissance  in  Italien,  Die 
Germanen  in  Frankreich;  HOVELACQUE  and  HERVE,  Recherches 
ethnologiques  sur  le  Morvan  (1894),  pp.  9,  37,  99;  Memoires  de  la 
Socicte  d'anthropologie,  vol.  I,  3d  series,  2d  part;  RIDGEWAY,  The 
Early  Age  of  Greece;  Who  Were  the  Romans?  A  communication 
to  the  Royal  Academy  of  Great  Britain  (Apr.  24,  1907). 


CHAPTER  IV 


§  1.  PROBLEMS  OF  SELECTION.  —  §  2.  ELIMINATION  AND  SELEC- 
TION. —  §  3.  THEORY  OF  THE  ELITE.— §4.  SELECTION  THROUGH 
THE  LAW.— §5.  SELECTION  IN  LEGISLATION. 

§  1.  Statement  of  Problems  of  Selection  as  Related  to 
Law.  All  men  have  not  taken  the  same  part  in  juridical 
life  and  in  the  making  of  the  law.  Peoples,  parts  of 
peoples,  and  number  of  individuals  have  disappeared 
without  leaving  a  trace;  their  juridical  spirit  and  their 
customs  have  sunk  into  oblivion.  International  and  civil 
wars,  diseases  and  conditions  of  reproduction,  have  se- 
lected law-making  humanity.  At  the  banquet  of  juridical 
life,  there  were  also  a  number  of  unfortunate  guests  who 
remained  but  a  moment.  And  among  those  who  lived 
and  founded  families,  there  were  many  who  were  more  or 
less  forcibly  refused  any  part  in  the  making  of  the  law; 
they  obeyed  the  texts  and  accepted  judgments  but  left 
no  imprint  of  their  thought. 

These  physical  and  moral  eliminations  are  numerous  and 
incontestable,  and  undoubtedly  the  law  would  not  be 
what  it  is -if  they  had  not  concurred.  The  historian- 
jurist  ought  to  ascertain  and  state  accurately,  to  the  best 
of  his  ability,  what  portion  of  humanity  it  is  whose  ideas 
have  been  preserved  in  the  old  texts. 

Among  certain  biologists  and  sociologists  this  continual 
elimination  is  known  as  selection.  It  is  not,  in  their 
opinion,  the  effect  of  chance  but  the  result  rather  of  a 
beneficent  law  which  is  at  work  among  living  beings.  By 
selection,  those  whose  existence  would  have  prevented  or 
retarded  human  progress  are  set  aside.  In  the  struggle 
for  life,  those  who  triumph  are  the  best,  the  strongest,  and 
the  best  adapted,  and  those  who  at  the  same  time  are  best 
able  to  adapt  themselves  to  circumstances  and  the  law  to 

96 


§  2  ]  ELIMINATION  97 

circumstances.  Selection,  as  Darwin  presented  it,  purifies 
and  makes  for  the  progress  of  the  moral  as  well  as  of  the 
physical  world.  If  this  is  so,  the  historian  ought  to  place 
it  in  the  foreground  of  historic  factors,  because  it  is  a 
question  of  explaining  the  evolution  of  the  law  and  that 
of  every  other  element  of  civilization.  This  chief  problem 
in  the  domain  of  institutions  raises  two  subsidiary  ques- 
tions. Are  the  different  legislations  which  are  the  object 
of  our  study  and  which  are  all,  up  to  a  certain  point,  in- 
struments of  elimination,  also  instruments  of  selection? 
Do  they  protect  the  most  fit  to  the  prejudice  of  the  least 
fit  ?  Are  there  institutions  which  have  had  this  character 
more  especially  and  should  we  appraise  their  role  his- 
torically in  this  respect?  Such  is  the  problem  of  selec- 
tion in  the  development  of  the  law. 

Finally,  ought  we  to  improve  our  laws  in  this  respect? 
Ought  we  to  watch  over  the  physical  and  moral  progress 
of  humanity  by  methods  similar  or  analogous  to  those 
which  breeders  employ  to  obtain  high-grade  animals, 
choice  fruits  and  vegetables?  Such  is  the  problem  of 
selection  in  legislation. 

§  2.  Elimination  and  Selection.  The  most  effective 
process  of  elimination  among  human  beings  is  war  be- 
tween peoples.  The  wars  of  olden  times  were  often 
exterminators;  peoples  and  towns  were  completely  an- 
nihilated. Thus  Rome  could  count  as  her  assets  the  de- 
struction of  Carthage  and  of  Corinth;  also  that  of  the 
Cimbrians,  the  Teutons,  and  many  others  who  have  com- 
pletely disappeared.  Epidemics  likewise  formerly  de- 
stroyed entire  races.  In  our  times,  wars  and  diseases  do 
not  physically  exterminate  peoples  but  they  have  an  in- 
fluence in  modifying  their  internal  composition.  The 
victors  as  well  as  the  vanquished  lose  part  of  their  popula- 
tion. The  struggle  for  life  occurs  between  subjects  of  the 
same  country;  submitted  to  the  same  tests,  some  survive 
and  others  perish. 


98  SELECTION  AND  THE  LAW        [Cn.iv 

1.  Moral  Elimination  a  Juridical  Factor  and  a  Biologi- 
cal Phenomenon.  Peoples  no  longer  struggle  for  physical, 
but  for  economic,  and  political  and,  up  to  a  certain  point, 
juridical  existence.  The  people  conquered  in  war  loses 
the  means  of  enriching  itself  and  of  influencing  the  com- 
mercial world;  sometimes  it  loses  the  right  to  govern 
itself.  But  more  often  still,  while  preserving  a  certain 
degree  of  wealth  and  political  autonomy,  its  prestige  is 
perceptibly  lowered.  Its  institutions  are  avoided;  it  be- 
comes discouraged  itself  and  no  element  of  its  national 
spirit  prospers.  Thus  classes  and  individuals  who  have 
been  vanquished  in  the  political  and  the  social  struggle 
continue  to  live;  but  everything  goes  on  in  juridical  life 
as  if  they  were  not  in  existence. 

This  moral  elimination  is  very  interesting  in  that  it 
constitutes  a  phenomenon  which  is  quite  as  much  biolog- 
ical as  moral.  It  will  appear  paradoxical  to  assert. that 
when  a  merchant  becomes  bankrupt  or  a  district-attorney 
is  dismissed  for  his  political  opinions,  the  fact  in  itself  en- 
ters, through  its  characteristics,  into  human  zoology  be- 
fore it  is  reborn  into  the  domain  of  political  economy  and 
law.  And  nevertheless  it  is  certainly  an  individual  in 
flesh  and  blood,  a  physical  being,  a  brain  with  individual 
and  hereditary  force,  who  is  annulled.  Now  the  elimina- 
tion of  a  living  being,  even  if  its  cause  is  abstract,  even  if 
the  environment  for  which  it  no  longer  exists  is  abstract, 
none  the  less  remains  a  biological  fact  interpolated  be^ 
tween  two  moral  and  purely  psychological  facts.  When 
I  kill  my  dog  because  he  has  the  mange  or  because  he  is 
not  a  good  watch-dog,  the  character  of  my  action  is  not 
changed  by  either  reason,  and  if  instead  of  killing  him,  I 
tie  him  up  in  a  cellar  where  nobody  can  ever  see  him  again, 
he  will  none  the  less  have  practically  disappeared  so  far  as 
the  task  for  which  he  was  destined  is  concerned.  Thus 
moral  selections,  commercial  struggles,  quarrels  between 
parties  and  classes,  and  professional  intrigues  and  rival- 


§  2 1  ELIMINATION  99 

ries,  all  pertain  to  the  social  world,  but  constitute  biolog- 
ical facts,  since  the  existence  of  living  beings  is  annulled 
in  them.  Although  law  is  an  intellectual  and  abstract 
thing,  it  is  a  biologic  fact  to  recognize  what  sort  of  human 
animals  are  those  who  toil  over  the  law. 

2.  Natural  Selection  not  a  Demonstrable  Truth,  hence 
not  a  Factor.  We  assert  that  phenomena  of  biological 
elimination  concern  the  law,  and  we  are  ready  to  affirm 
that  phenomena  of  selection  do  no  less  so,  provided  that 
it  be  made  definite  whether  these  phenomena  exist  and,  if 
so,  what  is  their  nature. 

When  we  speak  of  elimination,  we  mean  that  some 
human  beings  are  driven  out  of  juridical  causation;  but, 
we  do  not  presume  to  say  why  this  is  so,  or  pretend  to 
assert  that  the  victors  or  vanquished  have  a  good  quality 
or  fault,  relative,  or  absolute.  We  simply  state  under 
what  form  the  active  juridical  world  appears  in  history. 
We  see  men  who  apply  the  law;  there  are  those  who 
frame  legislations  and  others  who  judge  them.  Some  do 
not  make  laws  but  would  like  to;  there  are  others  who 
make  them  because  they  are  paid  for  it  but  otherwise 
care  nothing  about  it.  Some  judge  without  wanting  to, 
and  others  would  like  to  but  do  not;  and  so  forth. 
For  all  branches  of  juridical  activity,  certain  ones  are 
chosen  and  others  rejected.  But  it  is  impossible  for  us  to 
find  the  characteristic  which  distinguishes  the  one  who  is 
repudiated  from  the  one  who  is  accepted.  Among  those 
that  are  discarded  we  number  as  many  good  as  bad  fel- 
lows and  vice  versa. 

If,  on  the  other  hand,  we  admitted  selection  in  the  do- 
main of  the  law,  our  solution  would  be  entirely  different. 
Every  triumph  would  be  a  proof  of  the  superiority  of  the 
victor  over  the  vanquished ;  not  only  would  it  be  right  for 
the  victor  to  be  preferred  to  his  victim,  but  he  would 
have  rendered  a  service  to  humanity  by  overpowering 
him,  by  destroying  the  weeds  that  infest  the  field.  From 


100  SELECTION  AND  THE  LAW          [CH.  IV 

these  competitions  and  sacrifices,  we  should  hope  not 
only  for  the  triumph  of  whatever  is  superior  in  mankind, 
but  for  the  creation  of  new  qualities  resulting  from  the 
fact  that,  the  good  being  always  chosen  and  the 
others  always  eliminated,  the  products  of  these  chosen 
individuals  would  become  of  a  higher  order  day  by 
day. 

Therefore  those  who  believe  in  natural  selection  affirm 
these  three  things:  (a)  that  the  victor  is  always,  or  at 
least  most  often,  superior  to  the  vanquished,  (b)  that  the 
elimination  of  the  vanquished  is  a  benefit,  and  finally, 
(c)  that  it  is  a  benefit  not  only  because  it  prevents  the 
endless  reproduction  of  the  mediocre  and  weak,  but  be- 
cause it  is  an  instrument  of  progress.  It  allows  the  hope 
that  the  victors  of  tomorrow  will  be  superior  to  the  vic- 
tors of  today,  as  the  latter  are  in  comparison  with  those 
of  the  past. 

(1)  Alleged  Benefits  of  Natural  Selection  refuted  by  Ob- 
servation. The  first  of  these  propositions  is  already  a  priori 
very  questionable.  Can  it  be  verified  by  rational  obser- 
vation ?  No  doubt,  it  may  be  asked  what  would  have  hap- 
pened if  Carthage  had  conquered  Rome,  if  Robespierre 
had  overcome  B  arras  or  if  Napoleon  had  been  victorious 
at  Waterloo.  Upon  these  questions  we  can  exercise  our 
imagination  indefinitely,  but  the  result  will  not  be  of  the 
least  scientific  value.  When  we  say  that  the  triumph  of 
the  vanquisher  was  fortunate,  do  we  not  compare  a  thing 
which  exists  or  will  exist  with  a  thing  which  does  not  and 
cannot  exist,  —  a  realized  future  with  a  future  which  will 
not  be  realized? 

It  is  not  that  the  operation  is  in  itself  completely  im- 
possible and  illogical.  If  I  could  have  ascertained  fully 
all  the  qualities  of  the  vanquished  before  his  disappear- 
ance and,  on  the  other  hand,  could  have  recognized 
through  previous  experience  that  these  qualities  would 
necessarily  lead  him  to  certain  acts,  I  could  reestablish 


§  2  ]  ELIMINATION  101 

and  compare  these  hypothetical  acts,  and  estimate  their 
value  as  if  they  really  existed.  The  difficulty  is  precisely 
this,  that  we  cannot  have  accurate  enough  knowledge  of 
men  to  be  able  to  judge  from  the  past  what  they  will  do 
in  the  future.  It  is  relatively  possible  for  me  to  state 
that  when  I  had  a  certain  disease,  I  was  benefited  by 
one  remedy  and  not  by  another;  it  is  nearly  impossible  to 
assert  with  as  much  energy  that  if  a  certain  man  is  elected 
a  delegate  to  a  convention,  he  will  act  better  than  his 
opponent.  Everyone  does  not  conform  to  the  logic  of  his 
character.  Would  Robespierre  always  have  remained 
bloodthirsty  and  Napoleon  warlike?  What  can  we  know 
about  it?  Now,  I  ought  necessarily  to  imagine  what 
Robespierre  would  have  done  and  compare  it  with  what 
Ban-as  did,  before  claiming  that  the  triumph  of  the  lat- 
ter was  fortunate. 

Shall  we  try  to  employ  an  empirical  method  of  obser- 
vation? If  every  period  of  elimination  were  followed  by 
prosperity  and  progress;  if  after  every  civil  or  foreign 
war,  or  after  every  epidemic,  countries  took  a  new  lease 
of  life  and  health,  the  probable  conclusion  would  be  that 
in  these  bloody  crises  they  rid  themselves  of  their  bad 
elements,  and  that  natural  selection  is  not  an  empty 
word.  Now  it  is  precisely  the  opposite  which  seems  es- 
tablished by  the  facts  of  history.  Even  when  a  people 
apparently  emerges  from  such  crises  with  new  forces,  it  is 
often  simply  an  illusion.  The  contrast  between  the 
bloody  period  and  the  peaceful  period  makes  us  see  the 
country  as  more  prosperous,  or  as  much  so  as  formerly. 
It  is  advisable,  however,  to  make  some  reservations  in 
this  statement.  We  do  not  know  what  would  be  accom- 
plished by  a  broad  and  detailed  study  of  the  reanimation 
of  peoples  by  wars,  massacres  and  epidemics,  for  such  a 
study  has  never  been  made  It  is  certain,  however,  that  it 
is  not  by  this  method  that  selection  in  moral  phenomena 
could  be  demonstrated  at  the  present  time. 


102  SELECTION  AND  THE  LAW          [Cn.  IV 

(2)  Alleged  Benefits  of  Natural  Selection  refuted  by  De- 
duction. Therefore  if  human  and  natural  selection  is  not 
a  truth  which  can  be  derived  from  experience,  it  can  be 
established  only  by  deduction,  and  it  is  legitimate  to 
combat  it  by  deduction.  When  two  beings  or  groups 
struggle  against  each  other,  the  victor  always  has  a  certain 
quality  that  of  having  been  the  victor.  The  victory  may 
be  due  to  chance  once,  but  not  in  the  majority  of  cases. 
It  is  a  proof  of  superiority,  but  of  general  or  special  supe- 
riority. In  an  epidemic  of  small-pox,  the  fact  of  having 
been  vaccinated  is  enough  to  insure  the  victory;  outside 
of  this  circumstance  in  life,  it  is  a  matter  of  little  or  no 
interest.  If,  on  the  other  hand,  a  man  escapes  a  disease 
because  of  the  strength  of  his  constitution,  the  same  vigor 
which  enabled  him  to  avoid  first  danger  will  be  a  con- 
tinual advantage  through  his  whole  existence.  Because 
of  this  strength,  his  life  will  be  longer  and  his  work  lighter. 

Might  there  by  chance  be  an  invariable  quality,  read- 
ily defined,  which  would  insure  triumph  in  all  moral  or 
physical  struggles?  It  is  almost  certain  that  there  is  no 
such  quality.  To  be  victorious  on  the  field  of  battle,  to 
resist  epidemics,  to  win  in  bodily  combat,  to  multiply 
one's  race  by  seducing  women,  to  build  up  a  fine  clien- 
tele, to  be  elected  as  the  people's  representative,  to  over- 
throw a  minister  and  take  his  place,  these  are  victories 
which  demand  quite  different  aptitudes.  Intelligence  and 
activity  are  undoubtedly  useful  under  all  circumstances, 
but  what  kind  of  activity  and  what  kind  of  intelligence? 
It  is  a  question  of  intelligence  to  take  proper  hygienic 
measures  in  time  of  an  epidemic;  but  many  imbeciles  will 
think  of  such  precautions  and  many  intellectually  supe- 
rior men  will  neglect  them  and  employ  their  faculties  for 
something  besides  taking  care  of  themselves  at  the  proper 
time.  We  cannot  cite  virtues  which  are  always  useful 
and  defects  which  are  always  harmful  except  in  very  im- 
precise terms  which  correspond  to  nothing  real.  Other- 


§  2  ]  ELIMINATION  103 

wise,  it  must  be  acknowledged  that  according  to  circum- 
stances, the  large  man  or  the  small,  the  stout  or  the  thin, 
the  brave  or  the  cowardly,  the  candid  or  the  cunning,  the 
intelligent  or  the  weak-minded,  the  man  of  honor  or  the 
cheat,  may  be  the  victor  or  the  vanquished.  Superiority 
is  purely  relative. 

This  relative  superiority  has,  moreover,  a  name.  It  is 
ease  of  adaptation.  The  victors  are  the  best  adapted,  or 
those  who  possess  the  greatest  suppleness  in  adapting 
themselves.  It  will  be  said  that  the  struggle  for  existence 
leads  to  the  triumph  of  the  best  adapted  and  the  failure 
of  those  who  are  not  adaptable  and  that,  consequently, 
it  is  good.  The  principle  is  incontestable  provided  we 
recognize  it  as  tautology,  pure  and  simple.  The  victor  is 
best  adapted  to  all  the  particular  conditions  of  the  strug- 
gle, because  by  the  definition  if  he  were  not  the  best 
adapted  he  would  not  be  the  victor.  The  Apache  who 
assassinates  a  tradesman  is  best  adapted  to  the  environ- 
ment of  the  outlying  districts,  but  if  the  tradesman  had 
had  a  good  revolver  and  fired  in  time,  he  would  have 
been  the  best  adapted.  Is  the  Apache  adapted  to  our 
social  order?  Perfectly,  so  long  as  he  prospers  and  does 
not  allow  himself  to  be  captured.  He  would  no  longer  be 
adapted  on  the  day  when  we  undertook  to  clean  up  the 
districts  where  he  lives.  Thus  the  adapted  are  not  sacred 
beings  whose  triumph  may  be  desirable  for  some  reason 
or  other.  They  are  men  who  have  the  most  varied  good 
or  bad  qualities  and  who,  as  a  result  of  chance,  find  them- 
selves in  an  environment  which  is  propitious  to  those 
virtues  or  defects.  Perhaps  tomorrow  this  particular  en- 
vironment will  have  disappeared,  and  no  longer  having  an 
abiding  place,  these  temporarily  adapted  ones  will  of  ne- 
cessity disappear  also. 

Thus  selection  does  not  work  to  the  advantage  of  any 
moral  or  physical  quality.  It  acts  indifferently  for  all 
environments  and  has  no  unity  of  direction.  It  has  no 


104  SELECTION  AND  THE  LAW        [Cn.  IV 

mission  to  bring  about  or  maintain  any  definite  social 
ideal. 

§  3.  Natural  Selection  and  the  Theory  of  the  Elite. 
Those  who  believe  in  the  Darwinian  theory  of  selection 
have  made  a  very  ingenious  application  of  it  to  a  his- 
toric phenomenon. 

1.  Darwinian  Theory  as  applied  to  Historic  Phenom- 
ena. It  is  an  established  fact  in  the  history  of  all 
peoples  and  of  all  times,  that  the  same  classes  do  not 
remain  indefinitely  in  the  upper  ranks  of  society.  Aristoc- 
racies are  renewed  by  the  rise  of  individuals  who  spring 
from  the  people  and  come  to  hold  the  foremost  positions. 
This  phenomenon  is  brought  about  in  very  different  ways, 
but  it  is  incontestable. 

When  the  ranks  of  the  aristocracy  are  not  closed,  the 
change  is  imperceptible.  In  proportion  as  there  arises  in 
the  inferior  classes  an  individual  of  talent,  he  proceeds  by 
his  own  efforts  (if  Fortune  favors  him)  to  assume  a 
position  in  the  first  rank.  This  evidently  occurs  to  the 
disadvantage  of  an  aristocrat  by  birth,  but  often  without 
apparent  conflict.  When  many  individuals  thus  rise  and 
cause  their  families  to  rise,  it  may  be  said  that  the  elite  is 
perceptibly,  sometimes  even  completely,  modified  in  its 
elements. 

Most  often,  the  upper  classes  oppose  a  greater  or  less 
resistance  to  this  invasion.  They  repulse  the  candidate 
for  success,  refuse  to  welcome  any  new  comer,  and  some- 
times succeed  for  a  certain  time  in  maintaining  a  relative 
stability  in  the  ranks  of  society.  But  when  there  gathers 
in  the  lower  strata  a  crowd  of  malcontents  who  have  all 
the  requirements  necessary  to  make  them  rise,  such  as 
talent,  energy,  etc.,  this  compressed  force,  sooner  or  later, 
breaks  down  the  social  barriers.  The  change  of  the  elite 
is  effected  through  a  revolution.  The  old  aristocracy  dis- 
appears and  is  replaced  at  one  stroke  by  a  new  one. 

It  may  appear  quite  curious  that  this  phenomenon  re- 


§3]  THEORY  OF  THE  ELITE  105 

peats  itself  indefinitely  in  all  environments  and  it  is  le- 
gitimate to  look  for  the  explanation.  The  upper  classes  — 
according  to  a  widespread  theory  —  are  driven  from  power 
because  they  have  ceased  to  be  superior.  How  have  they 
lost  their  qualifications?  and  how  have  the  lower  classes 
acquired  new  ones?  It  is  because  selection  has  not  taken 
place  in  the  same  way  in  the  two  groups.  The  rich  are 
deprived  of  the  benefits  of  the  struggle  for  existence;  they 
have  few  children.  They  take  care  and  save  the  life  of 
worthless  human  specimens.  The  poor  have  a  great 
many  children  who  grow  up  in  any  way  they  can,  —  poorly 
nourished,  poorly  clothed  and  under  the  worst  hygienic 
conditions.  And  this  is  their  good  fortune.  The  mor- 
tality among  them  is  high;  only  the  strongest  and  best 
subjects  survive  and  these  in  their  turn  have  many  chil- 
dren of  whom  only  the  best  survive,  and  so  on.  It  is 
comprehensible  how,  at  the  end  of  some  generations, 
there  arise  from  the  lower  classes  quite  remarkable  sub- 
jects who  have  been  all  the  more  selected  in  that  they  and 
their  parents  have  lived  under  the  most  unfavorable  con- 
ditions. And  this  phenomenon  is  repeated  indefinitely, 
because  the  situation  remains  indefinitely  the  same,  —  the 
poor  man  is  always  selected,  while  the  rich  one  never  is, 
and  the  poor  one  on  becoming  rich  ceases  to  be  so. 

This  theory  has  led  astray  some  remarkable  minds. 
Without  admitting  it  as  a  certainty,  many  sociologists 
consider  it  probable.  This  is,  however,  only  explaining  a 
theory  that  is  almost  historical  by  one  that  is  nearly 
biological. 

2.  Opposing  Arguments:  (a)  Change  not  mere  Sub- 
stitution of  Classes.  Historically,  the  ascension  of  the 
elite  does  not  resolve  itself  —  even  in  its  simplest  expres- 
sion—  into  a  mere  substitution  of  one  class  for  another. 
A  change  of  this  kind  is  accompanied  by  a  change  in 
manners  which  become  aristocratic  or,  more  often,  demo- 
cratic. And  these  two  events,  the  fact  of  the  substitution 


106  SELECTION  AND  THE  LAW        [Cn.  IV 

of  classes  and  that  of  political  transformation,  are  so 
intimately  connected  that  we  forget  to  distinguish  be- 
tween them. 

He  whom,  to  simplify  matters,  we  shall  call  the  par- 
venu, does  not  rise  entirely  by  his  own  efforts.  He  is 
raised  to  power  by  the  popular  opinion  which  demands 
certain  political  changes.  He  is  not  indispensable,  but  he 
knows  how  to  offer  or  impose  his  services,  and  as  the  re- 
form must  be  made  by  him  or  some  one  else,  he  is  ac- 
cepted. Therefore  he  does  not  succeed  in  open  struggle 
against  all  others,  nor  solely  by  his  initiative  alone.  Hav- 
ing once  succeeded,  he  does  not  work  principally  for  the 
theories  which  he  represents,  but  above  all  else  for  him- 
self, and  his  family  and  friends;  it  is  natural  for  him  to 
wish  authority  to  be  great  when  it  has  become  "his," 
while  he  wanted  it  to  be  feeble  when  it  was  not  "his." 
From  this  arise  those  multiple  contradictions  between  the 
youth  and  the  mature  age  of  the  politician  which  are  in- 
exhaustible subjects  of  indignation  and  amusement.  They 
are  neither  very  reprehensible,  nor  very  creditable.  They 
are  imposed  upon  him  by  the  power  of  circumstance.  He 
is  not  simply  the  gambler  who  said  white  yesterday  with 
the  intention  of  saying  black  tomorrow.  He  does  not  en- 
tirely deserve  the  contempt  of  numskulls  nor  the  admira- 
tion of  Machiavellians. 

Besides,  as  a  rule,  this  parvenu  will  not  be  able  to  re- 
store to  the  authorities  all  the  power  of  which  he  despoiled 
them  during  the  period  of  his  aggression.  He  does  not 
possess  the  strength  to  reestablish  what  he  believes  that 
he  destroyed,  and  accordingly,  he  replaces  the  old  elite  to 
only  a  slight  extent.  " B arras  is  king !  Lange  is  queen!" 
—  so  shouted  the  throngs  for  a  moment.  But  Barras 
was  not  entirely  king,  nor  Lange  entirely  queen,  and  this 
little  pseudo-royal  couple  disappeared  of  itself. 

Among  certain  writers  there  is  an  exaggerated  tendency 
to  reduce  political  movements  to  a  simple  conquest  of 


§3]  THEORY  OF  THE  ELITE  107 

power  by  individuals  or  classes.  If  those  who  wish  to  at- 
tain superiority  were  really  the  strongest,  they  would 
have  no  need  of  a  pretext  to  drive  the  aristocrats  from 
power  in  order  to  seize  their  privileges  in  their  entirety. 
But  they  do  not  do  it,  they  covet  only  the  remnants  of 
these  privileges.  The  ascension  of,  or  the  change  in,  the 
elite  is  always  accessory  to  a  large  phenomenon,  —  a  po- 
litical transformation  which  is  desired  by  many  and  be- 
comes realized  to  a  certain,  though  variable,  extent  in 
spite  of  everything. 

It  is  indispensable  that  we  also  be  absolutely  accurate 
upon  a  second  point  in  this  question  of  the  ascension  of 
the  elite,  and  that  we  give  this  last  word  a  sufficiently 
clear  definition.  Is  the  elite  composed  only  of  those  who 
govern  or  possess  power,  who  are  doubtless  better  situ- 
ated than  others  to  get  the  best  there  is  in  life,  and  who 
may  be  relatively  likened  to  the  victors?  But  are  there 
not  many  other  individuals  or  families  who  have  as  much 
wealth,  moral  influence  and  prestige,  and  often  less  care? 
It  is  difficult  to  consider  these  as  the  vanquished.  Thus 
successful  merchants,  manufacturers,  artists,  men  of  let- 
ters and  many  others  seem  to  form  a  part  of  the  e"lite, 
since  they  have  obtained  what  they  desire,  in  fact,  all 
that  they  could  desire.  In  this  sense,  there  exists  a  com- 
mercial, a  financial,  an  industrial,  a  literary,  and  an  ar- 
tistic elite,  just  as  there  is  a  governmental  elite,  that  is, 
those  who  occupy  the  foremost  positions  in  the  most  im- 
portant branches  of  activity.  But  then  the  historical 
fact  of  the  ascension  of  the  elite  is  no  longer  true.  The 
upper  classes  furnish,  relatively  to  their  number,  a  tre- 
mendously larger  proportion  of  superior  men  than  do  the 
lower  classes.  Statistics  upon  this  point  have  been  com- 
piled which  can  hardly  be  questioned  as  a  whole.  It 
would  be  an  exaggeration  to  conclude  from  this  an  infe- 
riority of  the  lower  classes,  for  it  was  much  more  difficult 
in  former  times  for  a  son  of  the  people  to  succeed  and 


108  SELECTION  AND  THE  LAW         [CH.IV 

gain  recognition  than  for  the  son  of  a  nobleman  or  a  mag- 
istrate. But  these  observations  render  untenable  the  ar- 
gument of  a  general  and  necessary  degeneracy  of  families 
in  high  positions,  and  of  a  necessary  and  regular  intel- 
lectual ascension  of  the  lower  classes. 

(6)  Inconsistency  in  rate  and  method  of  progress,  etc. 
At  the  risk  of  seeing  it  flatly  contradicted  by  facts,  we 
must  restrict  the  theory  of  the  ascension  of  the  elite  to 
the  governmental  personnel  which  seems  to  us  to  be  the 
most  changing.  In  the  populous  classes  and  among  those 
who  have  had  a  hard  time  in  life,  natural  selection  would 
develop  the  aptitude  for  attaining  power.  —  Even  reduced 
to  these  terms,  it  seems  difficult  to  reconcile  the  argument 
with  positive  biological  facts.  Under  the  direction  of  the 
most  skillful  breeders,  selection  proceeds  slowly.  Experi- 
menters sometimes  have  under  their  observation  crea- 
tures which  live  and  reproduce  so  quickly  that  thousands 
of  generations  may  be  observed.  Perceptible  changes  are 
obtained  by  selection,  but  they  are  not  as  great  as  might 
be  supposed.  In  practical  breeding  of  domestic  animals, 
the  finest  subjects  are,  of  course,  chosen,  and  the  greatest 
care  in  the  choice  of  the  stallion  improves  the  race  quickly. 
But  a  certain  degree  of  perfection  once  obtained,  the 
species  remains  stationary,  and  selection  is  then  often 
powerless  to  effect  a  repetition  of  the  highest  type  which 
was  produced  by  chance  the  first  time.  The  phenomenon 
of  sons  unworthy  of  their  fathers  is  as  frequent  in  the 
best  conducted  and  most  carefully  guarded  animal  ge- 
nealogies as  in  the  human  species.  Finally,  selection  is 
employed  to  obtain  the  simplest  and  coarsest  qualities. 
To  produce  large  animals  this  process  is  preferred  to  all 
others,  but  for  the  more  complex  qualities,  the  breeder 
seeks  rather  purity  of  race  or  a  combination  of  crosses. 

Displacements  of  the  elite  often  take  place  with  as- 
tonishing rapidity  and  in  a  proportion  absolutely  opposite 
to  that  of  selection.  The  latter  acts  quickly  at  first  and 


§3]  THEORY  OF  THE  ELITE  109 

later  is  practically  at  a  standstill ;  the  movements  of  classes 
which  is  slow  among  young  peoples,  becomes  more  and 
more  rapid.  When  a  society  is  in  a  state  of  decline,  many 
have  their  turn,  but  the  time  for  each  is  very  short. 
They  are  hardly  installed  in  the  position  of  supremacy 
when  the  time  has  already  come  for  them  to  think  of 
leaving  it ;  and  —  as  a  proof  that  selection  is  no  factor  — 
changes  are  often  made  in  less  than  a  generation.  It  is 
therefore  impossible  for  the  degeneracy  of  the  one  class 
and  the  physiological  progress  of  the  other  to  have  had 
any  influence. 

On  the  other  hand,  the  faculty  of  attaining  power  and 
of  not  making  too  sorry  a  figure  in  the  new  environment 
is  a  very  complex  quality  which  seems  very  difficult  to 
obtain  by  a  simple  choice  of  the  most  robust  children.  I 
admit,  if  it  is  desired,  that  the  children  of  the  people 
have  more  health,  more  endurance  and  more  energy,  but 
these  qualities  are  not  sufficient  to  produce  statesmen. 
Selection  can  improve  their  physical  constitution  but  it 
cannot  give  them  moral  qualities  which  have  nothing  to 
do  with  the  aptitude  for  coming  unharmed  out  of  epi- 
demics, or  with  enduring  cold  and  heat  and  poor  food. 

(c)  Facts  must  be  interpreted  historically,  not  biologically. 
The  ascension  of  the  e"lite  is  not  a  biological  cause. 
Historically  and  politically  interpreted,  the  phenomenon 
no  longer  has  anything  mysterious  about  it.  Everything 
in  this  world  changes,  and  forms  of  government  more 
than  anything  else.  There  is  nothing  astonishing  in  the 
fact  that  with  new  conditions,  new  men  are  needed.  The 
qualifications  for  ruling  are  not  the  same  for  every  period 
of  history;  the  qualities  acquired  in  the  exercise  of  power 
do  not  long  remain  useful.  The  new  elite  arrive  with  new 
qualifications;  they  are  more  obsequious  or  more  inde- 
pendent, possess  more  physical  vigor  or  more  mental 
shrewdness,  more  economic  boldness  or  more  order  and 
discretion.  The  Germans  of  Tacitus  needed  a  loftiness 


110  SELECTION  AND  THE  LAW        (CH.  IV 

of  religious  tradition  joined  with  warlike  independence; 
these  jarls  could  not  preserve  the  same  authority  under 
the  Christian  and  already  centralized  monarchies  of  the 
early  Merovingians.  The  "trustis"  (said  of  those  who 
consecrated  themselves  wholly  to  the  royal  service) 
created  a  new  privileged  class.  In  the  feudal  period, 
political  and  military  worth  demanded  a  certain  rugged- 
ness  and  physical  endurance,  combined  with  the  faculty 
of  knowing  how  to  ally  one's  cause  with  that  of  the 
strongest  and  to  join  a  certain  pride  and  independence  of 
conduct  with  a  greater  or  less  loyalty  toward  the  suzerain. 

In  proportion  as  governments  were  established  and  the 
power  of  kings  increased,  these  traditional  qualities  1ead 
to  the  ruin  of  a  great  part  of  the  ancient  nobility.  A 
clever  courtier  could  not  procure  title  and  renown  by 
being  skillful  in  intrigue.  This  is  also  the  modern  under- 
standing of  home  and  foreign  politics,  namely,  that 
services  rendered  to  the  country  in  new  domains,  such  as 
law,  commerce  and  industry,  demand  a  new  personnel. 
At  the  end  of  the  old  regime,  the  privileged  classes  claimed 
for  themselves  one  of  these  three  advantages:  that  of 
birth,  of  title  or  of  renown.  Each  of  these  three  words 
characterizes  different  classes  of  the  elite;  the  nobility  of 
the  fief,  that  of  the  court,  and  that  of  office,  which  agreed 
only  indifferently  well,  under  monarchical  government. 

The  elite  of  the  French  Revolution  was  very  mixed, 
being  composed  of  nobles,  priest-nobles,  priest-common- 
ers, magistrates,  physicians  and  butchers.  The  upper 
classes  were,  however,  represented  in  much  larger  pro- 
portion than  the  lower  ones,  because  the  continual  po- 
litical agitation  did  not  permit  of  the  establishment  of  a 
stable  form  of  government. 

The  Napoleonic  elite,  on  the  contrary,  comprised  en- 
tirely new  elements.  Military  excitement  evoked  the 
success  of  individuals  fitted  for  the  new  form  of  war, 
but  only  for  that.  Therefore  at  the  Restoration,  these 


§4]         SELECTION  THROUGH  THE  LAW        111 

brilliant  heroes  of  the  previous  day  fell  with  frightful 
rapidity.  The  works  of  Balzac  give  in  striking  detail 
the  successive  disasters  of  these  men  whose  virtues  could 
not  be  utilized  and  whose  faults  became  vices  and  some- 
times odious  ones.  Baron  Hulet,  Captain  Brideau, 
and  Colonel  Max,  exclusive  imperialists,  retired  on  half 
pay  or  maintained  in  service,  were  eliminated  by  the 
same  forces,  in  spite  of  all  the  prestige  of  their  former 
heroism,  because  the  sphere  which  was  created  for  them 
was  no  longer  their  proper  sphere.  The  levity  of  their 
manners  and  their  rather  loose  morality  suited  a  life  of 
adventure,  danger  and  self-sacrifice,  but  in  the  calm, 
bourgeois  life  which  the  pacification  of  Europe  brought 
about,  they  could  only  continue  an  existence  which  was 
scarcely  worthy  or  honorable. 

An  e*lite  is  seldom  conquered  upon  its  own  ground,  —  in 
the  qualities  which  form  its  raison  d'etre.  But  it  cannot 
be  indefinitely  modified,  cannot  be  equally  superior  under 
all  conditions;  and  when  new  exigencies  in  the  social  life 
arise,  its  role  is  ended  and  it  quits  the  first  rank  without 
ceasing  to  be  what  it  has  always  been.  Natural  selection 
is  foreign  to  this  phenomenon. 

This  is  not  saying,  however,  that  harsh  and  painful  ex- 
periences and  the  obligation  to  earn  one's  bread  cannot 
produce  valuable  qualities  in  certain  individuals  and  in- 
fluence their  social  destinies.  But  this  consideration  is 
entirely  foreign  to  the  subject  under  discussion. 

§  4.  Selection  through  the  Law.  To  those  who  believe 
that  selection  has  played  a  part  in  human  history,  it  is 
objected  that  man  is  not  like  any  other  animal.  For  a 
very  long  time  he  has  formulated  principles  of  morality 
and  justice,  has  given  proof  of  social  instincts  and  senti- 
ments, and  has  regulated  his  relations  with  his  own 
people  and  with  strangers,  through  the  medium  of  legal 
texts.  Morality,  religion,  and  law  induce  the  human 
being  to  live  in  peace  with  his  neighbor,  united  with  his 


112  SELECTION  AND  THE  LAW         [Ca.  IV 

family,  and  in  harmony  with  all.  Man  does  not  struggle 
for  existence  against  other  men;  the  sweat  of  his  brow 
benefits  others  as  well  as  himself.  Humanity  as  a  whole 
may  labor  in  a  common  cause;  its  prosperity  lies  in  union, 
not  in  contest.  This  ideal  —  so  someone  interposes  —  is 
not  yet  completely  realized;  but  history  brings  us  nearer 
to  it  day  by  day.  In  every  instance,  law,  justice  and 
solidarity  are  essentially  philanthropic  forces  which  in 
the  control  of  human  destiny  tend  to  become  substituted 
for  the  selfish  forces  of  former  times. 

This  optimism  is  not  absolutely  false  as  a  whole. 
Neither  is  it. entirely  correct.  It  may  suffice  for  practical 
morality.  But  a  scientific  method  requires  more  delicacy 
and  subtlety.  It  is  true  that  there  is  no  longer  among 
men  the  same  struggle  for  life  which  there  would  be  if 
these  much-lauded  social  virtues  did  not  exist.  The  elimi- 
nation of  human  beings  is  less  brutal  and  takes  place 
quite  smoothly  and  according  to  rules  of  natural  justice 
which  are  dear  to  us.  There  is  no  suffering,  and  some- 
times there  is  even  pleasure  on  the  part  of  the  vanquished. 
Those  who  drop  into  social  nothingness  are  not  even  aware 
of  it,  and  do  not  suspect  the  day  when  they  will  cease  to 
live.  The  symbolic  spectre  leading  the  dance  of  death  in 
the  stained  glass  windows  or  miniatures  of  the  Middle  Ages 
has  tied  to  its  scythe  the  most  varied  and  attractive  rib- 
bons. We  cannot  be  too  grateful  to  our  own  institutions 
for  this. 

But  the  struggle  for  existence,  the  uestruction  of  human 
beings  by  other  human  beings,  is  as  intense,  perhaps  more 
intense,  than  ever;  and  our  good  will  is  absolutely  power- 
less to  abate  it,  for  it  proceeds  apart  from  us.  Law,  jus- 
tice and  morality  have  preserved  the  life  of  a  great  many 
persons,  but  in  order  to  do  so  they  had  to  cause  the  death 
of  others.  Social  virtues  have  assumed  control  of  human 
elimination,  but  have  not  suppressed  it. 

Political,  juridical,  professional,  commercial,  industrial 


§4]        SELECTION  THROUGH  THE  LAW        113 

and  literary  struggles  are  such,  it  will  be  said,  only  in  name. 
Victors  and  vanquished  often  vie  with  each  other  in 
courtesy,  and  a  defeat  does  not  entail  the  death  of  men. 
But  this  is  simply  an  illusion,  although  it  is  very  comfort- 
able for  us  that  we  can  entertain  it.  One  is  not  generally 
vanquished  at  the  first  blow,  he  may  hope  to  retaliate; 
the  defeat  is  not  necessarily  irreparable.  If  it  is  not  re- 
paired, the  vanquished  does  not  know  the  exact  moment 
at  which  he  is  definitely  lost,  and  may  entertain  a  certain 
hope  all  of  his  life.  He  does  not  experience  the  sorrow 
of  the  primitive  warrior  who,  full  of  pride,  sees  himself 
forever  humbled  in  a  few  seconds  by  a  more  fortunate 
adversary.  But  eliminations  are  not  from  this  fact  any 
the  less  real  and  complete.  The  vanquished  die  young 
and  do  not  form  families,  or  if  they  do,  very  uncertain 
ones;  or  they  may  be  pushed  aside,  so  that  even  if  they  do 
live  a  certain  time,  everything  goes  on  as  if  they  were  not 
in  existence. 

Sociability,  law  and  morality  conceal  but  do  not  sup- 
press the  warfare.  There  are  weapons  which .  are  de- 
fensive for  certain  beings  but,  for  that  same  reason, 
offensive  for  others.  Some  live  because  of  institutions, 
while  others  die  from  them,  and  the  last  are  perhaps  as 
numerous  as  the  first.  Can  there  be  formed  two  groups, 
those  of  victors  and  vanquished  which  have  other  common 
characteristics  than  that  of  having  been  the  victors  and 
the  vanquished?  Can  we  discover  among  the  former, 
one  and  the  same  virtue,  and  among  the  latter,  one  and 
the  same  fault  which  explains  why  the  former  have 
profited  by  the  development  of  our  abstract  life  and  the 
latter  suffered  from  it?  This  question  is  of  capital  im- 
portance to  us,  for  if  the  law  always  eliminates  the  same 
type 'of  individuals,  this  fact  once  established  belongs  to 
legal  philosophy.  If  the  contrary  is  true,  a  new  task  de- 
volves upon  juridical  history,  that  of  discovering  the 
different  kinds  of  human  beings  who  must  of  necessity 


114  SELECTION  AND  THE  LAW         [CH.  IV 

have  been  eliminated  in  the  course  of  time  by  the  force 
of  different  institutions. 

Anthropologists  often  say  that  a  particular  law  or  cus- 
tom has  brought  about  selection  in  a  nation  and  that 
another  has  done  so  backwards.  They  mean  to  say  that 
sometimes  undesirable  persons  have  been  vanquished  and 
eliminated  and  they  rejoice  in  the  fact;  and  that  at  other 
times  desirable  ones  have  been  the  victims  and  they  de- 
plore it.  These  expressions,  "selection,"  "backward  se- 
lection," are  then  purely  subjective  and  scarcely  scientific. 
But  it  may  be  deduced  from  this,  that  even  according  to 
the  view  of  the  theoretic  selectionists,  the  law  intervenes 
in  the  struggle  for  existence  to  eliminate  sometimes 
those  who  possess  a  certain  quality,  sometimes  those  who 
possess  the  opposite  quality.  Now,  since  the  most 
widely-differing  natural  tendencies  can  work  to  our  ad- 
vantage or  disadvantage,  it  seems  already  quite  well- 
established  that  juridical  elimination  can  act  in  all  direc- 
tions. 

But  we  shall  not  admit  that  the  fact  is  proved  until  it  has 
been  examined  more  in  detail.  Besides  it  is  important  for 
us  to  understand  not  only  the  nature  of  the  selection  which 
the  law  as  a  whole  can  produce,  but  also  that  which  is 
effected  by  its  different  branches.  For  example,  it  might 
happen  that  in  all  ages  and  societies,  commercial  law  has 
developed  the  same  tendencies,  while  rural  or  civil  law 
acts  in  the  opposite  directions. 

1 :  SELECTIVE  EFFECT  OF  THE  IDEA  OF  JUSTICE  AND  OF 
CONCEPTIONS  OF  PUBLIC  ORDER  AND  LEGAL  AUTHORITY. 
Ideas  of  justice  and  morality  are  factors  in  selection. 
When  one  civilization  is  inspired  by  a  particular  ideal, 
those  who  by  their  natural  disposition  are  most  inclined 
to  understand  and  develop  this  ideal  have  an  especial 
influence  on  their  fellow-men.  Such,  indeed,  is  its  most 
rational  and  apparent  effect.  But  its  r61e  in  history  is 
far  from  being  so  simple. 


§4]         SELECTION  THROUGH  THE  LAW       115 

Historically,  the  idea  of  justice  is  primarily  a  ruse  which 
clever  and  cynical  peoples  employ  to  deceive  more  ideal- 
istic and,  for  that  reason,  weaker  peoples.  The  Romans 
had  the  assurance  to  claim  that  they  knew  how  to  begin 
and  end  a  war  without  departing  from  justice.  They 
thought  that  they  would  thus  reassure  their  friends  for 
the  time  being.  In  their  political  quarrels,  the  Romans 
invoked  justice  upon  every  occasion.  Cicero  consecrated 
to  it  his  most  splendid  periods.  Now,  the  Romans  in 
general  and  Cicero  in  particular,  were  very  much  con- 
cerned in  their  everyday  life  with  right  and  wrong  when 
there  was  a  material  advantage  to  be  derived  from  it. 
But  these  grand  and  rather  insincere  declamations  have 
had  a  very  considerable  moralizing  effect  upon  Europe. 
Grotius  still  believes  in  their  sincerity;  he  thinks  that, 
although  they  sometimes  deceived  themselves,  the 
Romans  really  wished  to  carry  on  only  just  and  necessary 
wars.  And  if  so  powerful  a  people  had  so  constant  a 
care  for  justice,  is  it  not  because  justice  is,  in  itself,  an 
element  of  strength  and  prosperity?  This  consideration 
has  helped  to  make  that  idea  popular  and  to  make  the 
originally  artificial  idea  of  morality  a  true  force. 

Thus  through  the  ages,  this  curious  struggle  between 
matter-of-fact  and  visionary  minds  is  continued.  To  up- 
hold injustice  and  deny  the  ideal  is  to  betray  oneself  and 
lose  a  part  of  the  advantages ;  hence  the  really  adroit  poli- 
tician or  business  man  will  guard  against  it.  Accordingly, 
he  will  support  principles  which  he  regards  as  false, 
and  his  success  will  give  them  an  authority  which  will  be 
troublesome  to  those  who  may  subsequently  adopt  his 
course  of  deception.  He  creates  morality  without  believ- 
ing in  it,  and  for  the  very  reason  that  he  does  not  be- 
lieve in  it.  The  idea  of  justice  is  consequently  an  instru- 
ment of  selection  which  may  favor  indifferently  practical 
men  or  idealists. 

The  law,  itself,  in  its  most  general  form  (the  interven- 


116  SELECTION  AND  THE  LAW        [Ca.  IV 

tion  of  any  authority  whatever  for  the  purpose  of  giving 
orders  to  private  individuals)  is  in  an  almost  analogous 
situation.  It  is  sometimes  advantageous  to  obey,  some- 
times to  disobey  it.  The  law  eliminates  honest  and  con- 
scientious persons  whenever  it  prohibits  more  than  it  can 
win  respect  for.  A  contest  between  a  person  who  thinks 
he  must  obey  the  law  and  another  who  does  not  think  so, 
is  an  impossibility.  The  law  becomes,  on  the  other  hand, 
a  protection  when  its  severity  and  its  power  are  propor- 
tionate; when,  for  example,  it  prevents  or  limits  fraud  in 
civil  or  commercial  transaction,  not  by  theoretical  prohi- 
bitions but  by  effective  practical  measures. 

2:  SOLIDARITY  AND  SELECTION,  (a)  Theory  of  Con- 
tradiction between  the  Ideas  of  Solidarity  and  Selection. 
There  is  a  sentiment  which  finds  expression  in  the  most 
varied  juridical  domains.  It  may  be  given  the  name  of 
solidarity,  and  it  means  that  in  the  sentimental,  intel- 
lectual, moral,  philosophical,  and  religious  life  as  well 
as  in  the  practical,  political,  industrial  and  commercial, 
there  has  been  developing  among  men  for  a  long  time 
a  combination  of  fortunate  tendencies.  They  wish  to 
assure  peace  and  put  an  end  to  rivalries,  struggles  and 
competition,  even  at  the  price  of  mutual  sacrifice;  and 
they  are  ready  to  work  for  one  another,  occasionally  or 
regularly.  And,  under  its  higher  form,  this  spirit  of 
solidarity  entails  sacrifices  and  renunciation,  on  the  part 
of  the  individual,  of  his  own  existence  for  the  good  of 
others.  To  be  complete,  lofty  social  sentiments  (love, 
friendship,  and  patriotism,  etc.)  admit  of  considerable 
extension. 

If  we  establish  the  fact  that  in  the  course  of  history  this 
solidarity  appears  under  a  thousand  different  forms  and 
in  all  societies,  is  not  this  sufficient  to  force  the  conclu- 
sion that  for  a  long  time  man  has  not  been  a  beast  of  prey 
in  regard  to  his  fellow-man  but  his  companion  and  helper, 
and  that  the  success  of  one  is  the  success  of  the  other? 


§4]         SELECTION  THROUGH  THE  LAW         117 

At  least,  must  it  not  be  acknowledged  that  solidarity  is 
the  contradiction  of  the  struggle  for  existence,  that  wher- 
ever one  nourishes  the  other  is  obliterated,  and  that  con- 
sequently if  the  philanthropic  spirit  became  general,  hu- 
man elimination  or  selection  would  be  arrested?  This  is 
repeatedly  asserted  to  be  so.  What  must  we  think  of  it? 

(6)  Theory  of  Contradiction  refuted.  It  is  said  that 
union  is  strength.  But  what  is  the  good  of  this  strength 
if  it  is  not  to  compete  against  someone  and  destroy 
him?  And,  in  fact,  all  human  associations  ask  for 
peace,  union  and  sacrifice  among  the  individuals  and 
groups  composing  them,  in  order  to  be  more  violent,  sel- 
fish and  destructive  toward  other  individuals  and  groups. 
Social  virtues  have  undertaken  the  business  of  human 
destruction,  and  have  perfected  processes  which,  under 
this  new  direction,  have  become  more  and  more  exter- 
minating. It  is  true  that  those  who  disappear  are  not 
those  who  would  have  disappeared  without  them.  They 
thwart  and  arrest  natural  selection,  and  substitute  for  it 
a  series  of  artificial  selections  which  act  in  many  different 
ways. 

If  we  suppose  a  state  preceding  the  first  collectivity 
(family  or  tribe),  the  weakest  individual  was  eliminated 
by  the  strongest.  After  the  establishment  of  the  first 
group  —  which  to  facilitate  the  argument  we  shall  sup- 
pose to  have  been  that  of  the  family  —  superiority  would 
be  on  the  side  of  those  who  had  the  most  highly  devel- 
oped family  sentiments.  The  weakest  and  those  who  had 
the  largest  families  would  triumph  over  those  who  were 
stronger  but  had  smaller  families.  It  is  very  probable 
that  those  who  had  the  greatest  need  of  joining  together, 
those  who  were  the  least  able  to  resist  individually,  gener- 
ally united  first  and  most  solidly.  So  that  the  vanquished 
of  one  day  became  the  victors  of  the  following  day, 
precisely  because  they  had  been  the  vanquished.  The 
effects  of  the  selective  struggle  were  thus  reversed. 


118  SELECTION  AND  THE  LAW          [Cn.IV 

The  solidarity  of  the  State,  or  patriotism,  springs  from 
the  fact  that  certain  families  which  would  be  unable  to 
compete  successfully  if  they  remained  by  themselves, 
unite  and  triumph  over  families  that  are  stronger  but 
have  not  known  how  to  form  themselves  into  groups. 
Selective  force  is  again  displaced.  It  causes  the  triumph 
of  those  among  whom  the  love  of  State  is  more  developed 
and  that  of  the  family  less  developed.  Every  time  that 
a  human  association  is  formed,  whatever  its  character, 
nation,  city,  municipality,  professional  association,  reli- 
gious society,  trade-union,  corporation,  syndicate  or  com- 
mercial company  its  aim  is  to  reverse  the  rules  of  selec- 
tion as  they  are  then  operating,  and  to  establish  new  ones. 
Therefore  it  is  right  to  say  that  social  virtues  are  instru- 
ments of  selection,  provided  it  is  added  that  far  from 
combining  and  complementing  one  another,  they  work 
against  one  another.  This  is  even  their  principal  raison 
d'etre.  To  be  a  good  father  prevents  one  from  being  an 
especially  good  citizen.  Every  society  which  is  formed  in 
a  commonwealth  is  directed  against  the  other  citizens  of 
the  same  commonwealth  and  is  accordingly  incompatible 
with  absolute  devotion  to  the  country  as  a  whole.  We 
conclude,  therefore,  that  association  always  has  the  effect 
of  terminating  the  struggle  against  the  associated  and  of 
directing  it  against  the  non-associated. 

This  is,  however,  only  a  schematic  truth,  since  the 
struggle,  even  between  the  associated,  does  not  always 
entirely  cease.  It  is  continued  in  most  varying  degrees 
and  under  very  different  forms. 

In  strong  family  organizations,  which  constitute  Le 
Play's  ideal,  the  role  of  chief  is  acquired  by  competition 
between  brothers,  and  the  one  who  succeeds  in  obtaining 
it  by  his  merits  or  his  cleverness,  almost  completely  ab- 
sorbs the  personality  of  the  others.  Numerous  obstacles 
must  be  overcome  before  one  can  take  one's  place  as  the 
head  of  the  family.  On  the  contrary,  there  is  no  longer 


§4]        SELECTION  THROUGH  THE  LAW         119 

internal  selection  when  —  which  is  most  frequently  the 
case  —  custom  or  law  appoints  the  privileged  one  because 
of  his  age.  He  enjoys  his  rights  without  the  least  effort 
and  without  having  given  any  proof  of  his  worth.  Many 
aristocratic  legislations  try  to  protect  great  families  from 
vital  competition,  by  creating  a  patrimony  so  encumbered 
by  entails,  and  regulations  as  to  majority,  that  it  cannot 
be  dissipated  by  the  incapacity  of  the  head  of  the  family. 
Nepotism  likewise  expresses  this  effort  of  the  family  to 
protect  one  of  its  elements  from  the  test  of  personal  effort 
which  he  cannot  sustain. 

According  to  their  extent,  their  constitution,  and  the 
degree  of  solidarity  of  their  members  and  their  political 
theories,  nations  allow  individuals,  families  and  societies 
more  or  less  liberty  in  regard  to  destroying  one  another. 
Some  take  no  interest  in  the  struggle,  and  confine  them- 
selves to  crowning  the  victors.  By  certain  theories,  it  is 
considered  advisable  to  respect  the  actions  of  individuals 
and  allow  the  eliminations  which  result  from  them,  if 
they  result  in  the  general  prosperity  of  the  country,  but, 
on  the  contrary,  to  intervene,  when  the  destruction  of  a 
group  of  a  party,  of  an  industry  or  a  trade,  threatens  to 
impoverish  the  country.  We  still  profess  and  put  into 
practice,  more  or  less,  the  maxim  that  the  right  of  the 
strongest  is  sacred  provided  he  be  the  strongest,  not  acci- 
dentally but  through  some  permanent  virtue.  Subjects 
of  one  and  the  same  state  are  not  at  all  protected  from 
elimination,  so  long  as  this  elimination  depends  upon 
chance.  Thus  no  matter  what  their  personal  worth, 
orphans  would  be  worsted  in  life  through  the  mere 
accidental  fact  that  they  had  lost  their  parents  in 
infancy.  The  State  should  protect  them,  as  it  should 
protect  new  industries,  objects  of  luxury,  scholars,  men 
of  letters  and  philosophers  who  are  of  no  consequence 
in  the  struggle  of  today  and  who  left  to  themselves 
would  disappear,  but  who  are  the  seed  of  physical  or 


120  SELECTION  AND  THE  LAW          [Cn.IV 

moral  beings  capable  of  becoming  the  victors  in  the 
struggle  of  tomorrow. 

The  State  may,  on  the  other  hand,  propose  as  its  ideal 
to  put  an  end  to  all  contest  between  its  citizens  and  thus 
make  them  collaborators  and  not  competitors.  It  is  not 
for  us  to  say  whether  this  is  possible  or  not.  But  history 
should  take  note  of  legislations  of  this  character  and 
state  the  results  which  they  have  been  able  to  obtain. 

We  might  pursue  this  study  a  long  time  by  observing 
particular  organizations.  There  are  some  in  which  the 
union  of  the  members  is  complete;  and  others  where  the 
harmony  is  purely  apparent'.  Men  of  the  same  political 
party,  those  who  move  in  the  same  social  circle,  or  mem- 
bers of  the  same  professional. associations  do  not  always 
long  from  the  bottom  of  their  hearts  for  common  prosper- 
ity. Their  souls  are  divided  between  the  desire  of  main- 
taining the  solidity  of  the  group  which  allows  them  to 
put  up  the  strongest  front  against  outsiders,  and  that  of 
eliminating  their  neighbors  who  are  their  most  dangerous 
rivals.  It  seems  to  us,  therefore,  futile  to  attempt  to 
find  a  general  formula  which  would  characterize  the  rela- 
tionship between  solidarity  and  selection.  Every  type  of 
association  has  worked  differently  at  every  period  and 
should  be  studied  by  itself. 

3:  SELECTION  AND  CRIMINAL  LAW.  This  branch  of 
the  law  seems  more  especially  charged  with  the  work  of 
selection.  According  to  definition,  is  it  not  purifying  so- 
ciety, to  put  to  death,  imprison  or  transport  murderers, 
robbers  and  other  individuals  who  form  the  dregs  of  the 
population,  —  to  suppress  the  bad  elements  and,  up  to  a 
certain  point,  their  descendants,  and  to  select  with  the 
precise  intention  of  obtaining  a  better  humanity  just  as 
the  breeder  discards  defective  animals  in  order  to  im- 
prove the  race? 

This  operation  may  be  more  or  less  well  conducted. 
Well  conducted,  it  will  produce  the  proper  selection; 


§4]         SELECTION  THROUGH  THE  LAW          121 

poorly  conducted,  an  incomplete,  insufficient,  perhaps, 
insignificant  selection.  In  every  instance,  to  remove  a 
malefactor  from  society  is  to  better  the  social  group  from 
a  moral  point  of  view.  This  is  a  rather  naive  truth;  but 
we  must  not  conclude  from  it  that  criminal  law  is  always 
a  more  or  less  effective  instrument  of  selection.  To  rid  us 
of  harmful  beings  is  one  of  its  functions,  but  it  is  not  its 
only  function.  In  order  to  evaluate  the  results  which  it 
produces,  its  good  and  bad  qualities,  it  behooves  us  to 
consider  its  action  as  a  whole. 

Criminal  law  has  existed  from  the  day  when  some 
power,  collective  or  individual,  lay  or  religious,  tribe, 
family,  state,  public  or  secret  society,  king  or  even  brig- 
and, first  took  charge  of  maintaining  or  helping  to  main- 
tain the  general  safety.  It  punishes  guilty  acts  directly  or 
assists  in  repressing  them.  Thus  it  takes  its  place  simply 
as  an  intermediary.  In  the  beginning  of  its  enterprise  it 
recognizes  the  fact  that  everybody  has  the  right  to  secure 
justice  for  himself,  but  that  interminable  conflicts  be- 
tween families  of  the  same  tribe  are  troublesome  and 
should  be  limited  and  regulated.  It  simultaneously  facili- 
tates the  application  of  the  punishment  and  the  mainte- 
nance of  supervision.  It  is  the  power  which  chooses  and 
applies  the  punishment;  it  insensibly  monopolizes  the 
right  to  punish.  It  combats  private  vengeance,  because 
it  may  be  excessive  or  unjust,  but  especially  because  such 
vengeance  is  a  failure  to  recognize  an  authority  which  has 
been  acquired  with  difficulty  and  upon  which  more  and 
more  depends.  This  monopoly  of  punishment  becomes  a 
constant  attribute  of  sovereignty,  desired  not  only  by 
those  who  are  capable  of  maintaining  order,  but  also  by 
those  who  are  powerless  to  do  so.  It  is  not  even  unprece- 
dented in  political  history,  to  see  a  good  policeman  sup- 
planted by  a  poor  one.  In  certain  countries,  the  disap- 
pearance of  highway  robbery  is  regretted  by  the  friends 
of  honesty  and  order.  They  affirm  that  the  public  pow- 


122  SELECTION  AND  THE  LAW          [Cn.IV 

ers  have  destroyed  organizations  which  most  vigilantly 
guarded  private  safety  and  have  replaced  them  with  less 
honest  and  less  capable  ones.  Let  us  not  speak  of  the 
present.  In  the  past,  this  must  very  often  have  been  the 
case. 

To  maintain  order,  three  organizations  are  neces- 
sary, (a)  a  good  police  which  watches  and  arrests  male- 
factors, (b)  a  good  magistracy  —  in  the  broad  meaning  of 
the  word  —  to  prosecute  with  energy  and  sentence  with 
clearness  of  judgment,  (c)  and  a  penal  system  which  is 
really  repressive.  Primitive  societies  have  poor  police 
forces  and  insufficient  means  of  proof;  civilized  societies 
generally  have  excellent  police  forces,  magistracies  —  in 
the  broad  meaning  of  the  word  —  which  are  sometimes 
mediocre,  and  penal  tendencies  which  are  very  often  de- 
plorable. So  that  in  the  course  of  ancient  and  modern 
history,  there  are  numerous  periods  when  the  official 
guardian  is  not  a  very  watchful  guardian,  or  acquits  him- 
self rather  poorly  in  his  function  of  restraining  evil.  But 
there  is  another  function  which  he  fulfills  much  better  be- 
cause it  is  easier  and,  to  him,  more  interesting:  that  is  to 
maintain  his  monopoly,  to  prevent  the  victim  or  his  rela- 
tives from  taking  justice  into  their  own  hands,  or,  as  it 
has  been  well  said,  to  protect  the  guilty,  the  malefactor, 
against  the  honest  man.  Thus  the  criminal  law  has  not 
regularly  had,  in  history  and  in  present-day  life,  the  se- 
lective virtues  which  are  attributed  to  it.  We  are  going 
to  give  a  little  general  sketch  which,  be  it  understood,  is 
not  intended  to  supplant  the  special  research  that  should 
be  instituted  upon  this  point  for  each  period  and  each 
country;  on  the  contrary,  this  outline  should  show  the 
impossibility  of  establishing  a  general  principle  in  the 
matter. 

(a)  Primitive  Criminal  Law  not  selective,  but  equalizing, 
in  function.  Previous  to  all  civilization,  might  was  right 
the  weakest  disappeared  unnoticed.  When  men  be- 


§4]         SELECTION  THROUGH  THE  LAW         123 

came  grouped  into  families  or  tribes,  it  was  to  the  interest 
of  the  group  to  prevent  itself  from  diminishing  and  to  as- 
sume, therefore,  the  defense  of  its  own  members.  Anger 
and  self-interest  drove  each  collectively  into  trying  to  in- 
flict the  greatest  injury  upon  its  rivals.  But  the  families 
were  nearly  equally  armed  and  so  there  was  not  a  decla- 
ration of  open  warfare  but  each  chose  its  own  time  and 
means.  The  most  powerful,  courageous,  vigorous  and 
innocent  were  as  liable  to  succumb  in  this  struggle  of 
snares  and  ambuscades  as  the  weakest  and  most  guilty. 
There  was  no  selection,  either  physical,  moral  or  intel- 
lectual, for  no  strength,  strategy,  or  sympathy  could  pro- 
tect anyone. 

Criminal  law  has  then  always  stood  forth  as  the  pro- 
tector of  the  good,  of  those  who  create  a  disturbance  only 
because  they  are  driven  to  it.  Indignation  was  aroused  be- 
cause these  family  struggles  decimated  the  tribe,  perhaps, 
also,  because  often  those  who  were  most  unruly  and  had 
the  least  respect  for  custom  and  religious  principles  were 
victorious  over  their  betters.  But  it  seems  that  this  first 
intervention  of  the  State  was  not  exactly  selective.  It  is 
purely  impartial  and  equalizing.  One  family  had  suffered 
some  injury  at  the  hands  of  another;  it  must  be  made  to 
undergo  an  equal  injury  so  that  it  might  not  become  the 
stronger.  There  was  no  pretence  of  making  good  triumph 
over  evil,  but  only  of  inflicting  upon  the  malefactor  the 
injury  which  he  had  made  another  suffer.  Thus  the  law 
of  retaliation  is  not  selective,  for  the  loss  of  an  evil  pre- 
supposes the  loss  of  a  good,  so  that  at  the  final  count 
there  remain  as  many  Cains  as  Abels.  Certain  legisla- 
tions push  this  principle  of  equalization  of  losses  so  far 
that  the  idea  of  guilt  is  obliterated.  The  essential  point 
is  to  inflict  upon  the  aggressive  tribe  exactly  the  same 
harm  that  has  been  inflicted  upon  the  injured  tribe,  and 
no  more.  If  a  chief  kills  a  child,  a  young  man,  a  woman, 
or  some  one  of  only  secondary  importance,  it  is  not  the 


124  SELECTION  AND  THE  LAW          [Cn.IV 

guilty  criminal  who  is  put  to  death,  but  some  entirely  in- 
nocent person  of  the  same  importance  as  the  victim,  so 
that  the  injuries  suffered  may  not  be  heavier  upon  one 
side  than  the  other. 

(6)  Later  Criminal  Law  as  a  Selection  favoring  the  Bad. 
By  composition,  the  guilty  party  is  freed  in  considera- 
tion of  a  sum  of  money.  •  He  remains  alive  and  his  family 
does  not  suffer  any  decrease.  The  equilibrium  is  destroyed 
to  the  advantage  of  the  criminal.  By  this,  selection  is 
favorable  to  the  criminal,  unless  the  payment  is  heavy 
enough  to  entail  the  ruin  of  the  guilty  party  and  his  fam- 
ily, and  accordingly  produce  his  indirect  elimination. 

Finally,  when  repression  is  exercised  entirely  by  the 
State,  criminal  law  favors,  according  to  the  time  and  cir- 
cumstances, the  families  of  the  guilty  as  well  as  those  of 
the  victims.  The  epochs  which  we  censure  for  their  se- 
verity—  their  cruelty,  we  may  say  —  those  in  which  the 
criminal  and  his  descendants  were  exterminated,  when  a 
person  was  hung  for  theft  or  the  least  other  offence,  only 
such  epochs  have  attained  selection  in  the  right  direc- 
tion. Otherwise,  in  the  struggle  between  good  and  evil, 
evil  is  necessarily  always  favored;  in  other  words,  there 
are  many  more  honest  men  who  die  at  the  hands  of  male- 
factors than  there  are  malefactors  who  are  put  to  death 
by  the  State,  and  accordingly,  the  proportion  of  the  lat- 
ter necessarily  increases.  A  penal  system  which  prevents 
too  great  an  increase  of  this  proportion  is  already  a  splen- 
did one  and  it  would  appear  impossible  to  aim  any  higher. 
We  must  bear  in  mind  this  fact,  that  the  guilty  are 
not  always  easily  discovered,  and  that  once  discovered, 
they  have  in  their  favor  a  whole  arsenal  of  protection  in 
the  penal  Codes  and  Code  of  Criminal  Procedure.  A 
body  of  scholarly,  active  men  held  themselves  at  their 
service.  We  cannot  dream  of  withdrawing  more  than  a 
very  small  part  of  the  numerous  advantages  from  the 
hands  of  rascals,  for  they  are  necessary  in  order  to  pre- 


§4]         SELECTION  THROUGH  THE  LAW        125 

vent  the  honest  man  from  being  caught  in  his  own  trap 
and  the  innocent  from  being  condemned  in  place  of  the 
guilty.  And  if  we  consider  the  insignificance  of  the 
punishment  inflicted  upon  the  few  poor  devils  who  allow 
themselves  to  be  arrested  and  condemned  (the  law  has 
exceeded  the  bounds  of  credibility  in  these  matters)  we 
wonder  how  we  ever  hoped  for  a  single  instant  to  make 
criminal  law  an  instrument  of  selection,  when  it  is  entirely 
the  reverse. 

It  has  been  possible  for  us  to  be  deceived  on  this  point,  be- 
cause writers  on  criminal  law  satisfy  themselves  and  us  with 
words  and  cause  us  to  disregard  realities.  Ever  since  the 
time  when  the  State  first  exercised  in  our  place  our  right  of 
private  vengeance,  we  have  forgotten  the  existence  of  this 
right.  We  see  in  criminal  law  only  the  State  prosecuting 
a  malefactor,  and  we  ignore  the  other  side  of  the  picture, 
the  State  tying  our  hands  to  prevent  our  taking  revenge 
for  the  wrongs  we  have  suffered.  One  of  Courteline's 
characters  who  has  been  beaten  is  very  much  astonished 
that  his  assailant  clears  himself  by  the  payment  of  a  fine 
of  sixteen  francs.  He  criticizes  this  sentence  and  receives 
two  years  in  prison.  That  man  had  seen  both  sides  of 
the  picture  and  had  experienced 'this  truth  (with  which 
treatises  on  Criminal  Law  have  but  little  familiarized 
the  people),  that  the  protection  accorded  by  the  State  to 
the  guilty  party  against  his  victim  is  more  vigorous  and 
effective  than  that  accorded  the  victim  against  the  guilty 
party. 

This  is  said,  be  it  understood,  without  meaning  to  criti- 
cize anyone.  We  state  without  blaming  a  condition  of  af- 
fairs which  is  perhaps  satisfactory;  we  draw  from  it  this 
theoretical  principle  that  criminal  law  cannot  select,  that 
crime  and  its  suppression  can  only  be  favorable  to  the 
development  of  criminal  tendencies,  if  we  suppose  them 
hereditary.  Fortunately,  they  are  not  always  or  neces- 
sarily so.  Every  class  of  individuals  occasionally  is  crim- 


126  SELECTION  AND  THE  LAW         [CH.  IV 

inal.  It  is  almost  certain  that  the  most  moral  and  con- 
sistent man  might,  under  certain  circumstances,  commit 
a  crime.  It  is  not  positive  that  there  are  any  born-crim- 
inals, those  who  could  be  recognized  by  physiological  stig- 
mata. This  is  not  equivalent  to  saying  that  certain  indi- 
viduals cannot  inherit  a  tendency  to  crime.  But  does 
this  tendency  to  crime  persist  after  several  generations? 
This  cannot  be  affirmed  with  certainty.  Normal  and  fairly 
moral  peoples  have  sprung  from  colonies  of  blackguards. 
So  that  if  criminal  law  does  not  select,  it  is  perhaps  not 
indispensable  that  it  should  do  so. 

(c~)  Political  Penal  Law  involves  no  Process  of  Selection. 
Up  to  this  point  we  have  spoken  of  crime  as  an  act 
which  inflicts  injury  upon  another.  There  are  also  a 
large  number  of  acts  which  are  repressed  by  the  State 
only  in  its  own  interest.  For  the  State  to  be  able  to  di- 
rect the  general  police  and  superintend  the  application  of 
laws,  it  must  constitute  a  being  higher  than  individuals, 
otherwise  it  would  have  no  more  authority  than  an  indi- 
vidual. There  must  be  a  special  law  prohibiting  frogs 
from  getting  upon  the  top  of  the  log,  otherwise  all  frogs 
would  mount  without  delay  and  the  log  would  serve  no 
purpose.  Thus  it  is  not  possible  to  have  any  form  of 
government,  even  the  most  rudimentary,  which  does  not 
prohibit  acts  that  are  absolutely  lawful,  perhaps  even 
beneficent  and  inspired  by  the  best  sentiments,  but  that 
are  of  a  nature  to  throw  into  confusion  the  mechanism  of 
the  government  as  it  exists.  We  cannot,  of  course,  ask  a 
government  to  retire  because  some  persons  maintain  that 
it  might  be  replaced  by  a  better  one.  Inevitably, 
therefore,  we  find  that  there  exists  everywhere  a  public 
penal  law  over  and  above  the  other.  Everything  which, 
though  harming  no  one,  can  bring  misfortune  upon 
the  tribe  or  draw  down  upon  it  the  divine  wrath  is 
treason  towards  the  head  of  the  tribe  or  the  brigand  who 
protects  the  country.  Crimes  of  lese-majeste,  sacrilege, 


§4]        SELECTION  THROUGH  THE  LAW         127 

criticisms  (written  or  spoken)  are  acts  which  disturb  the 
moral  authority  of  a  form  of  government,  any  insult  to  an 
official  in  the  exercise  of  his  functions,  conspiracies,  coali- 
tions of  (public)  officials,  seditious  opinions,  etc.,  are  in 
this  category. 

This  political  penal  law  plays  a  preponderant  part  in 
penal  law  as  a  whole.  This  was  formerly  the  case,  admit- 
ting that  it  is  no  longer  so  today.  The  most  considerable 
number  of  heads  have  fallen  in  honor  of  this  particular 
form  of  law;  and  if,  in  our  day,  many  venture  to  cut  a 
man  or  woman  to  pieces  and  throw  the  remains  reck- 
lessly into  some  city,  canal,  when  they  would  not  dare 
to  fling  a  pebble  at  the  clock  of  a  town  hall,  it  is 
because  they  know  how  strictly  offences  against  au- 
thorities are  repressed,  and  how  much  indulgence  may  be 
counted  on  by  those  who  confine  themselves  to  eliminat- 
ing individuals.  For  magistrates  are  and  have  generally 
been,  before  all  else,  officials  in  the  service  of  the  State,  — : 
a  fact  which  does  not  prevent  them  from  being  well-in- 
formed upright  men  of  high  moral  worth,  who  can  some- 
times be  useful  to  private  interests. 

Those  who  most  vigorously  affirm  the  necessity  of  a 
government's  defending  itself,  do  not  withhold  their  re- 
spect from  persons  who  get  worsted  in  political  struggles 
but  whose  moral  worth  may  be  considerable.  Revolu- 
tionists are  not  always  the  superior  beings  we  are  too 
often  inclined  to  believe;  but  they  may  be  men  whose 
personal  worth  would  entitle  them  to  a  better  lot,  and 
whose  suppression  does  not  constitute  a  high  asset  to 
society  as  a  whole.  Individual  or  entire  groups  are  sacri- 
ficed at  the  will  of  a  prince  or  for  reasons  of  State,  and 
experience  teaches  us  that  the  hand  of  justice -is  not  at  all 
light  under  such  circumstances. 

Such  criminal  law  involves  no  selection. 

The  majority  of  the  penal  legislations  of  Europe  are 
more  or  less  unsound  from  the  view-point  of  politics  or  of 


128  SELECTION  AND  THE  LAW        [Cn.lV 

general  morality.  The  French  law  punishes  by  a  fine  of 
ten  thousand  francs  any  one  who  declares  himself  a  can- 
didate for  the  deputyship  in  several  districts  at  the 
same  time,  —  an  act  which  harms  no  one  and  can,  in  any 
case,  have  no  effect.  No  one  has  ever  paid  this  ten 
thousand  francs;  but  why  should  we  not  be  spared  this 
ridiculous  provision?  In  other  countries,  a  suicide  is 
punished  and  our  colleague  Kuhlenbeck,  whose  general 
principles  of  penal  law  are,  nevertheless,  commendable, 
asks  for  the  punishment  of  certain  acts  which  harm  no 
one,  because  they  are  particularly  disgusting.  How  many 
disgusting  things  there  are  in  this  world  that  justice  can- 
not reach! 

§  5.  Selection  in  Legislation.  We  have  only  to  con- 
sider the  idea  of  selection  in  order  to  understand  the  part 
which  it  may  play  in  legislation.  The  practical  side  of 
law  does  not  concern  us;  and  when  physicians,  natural- 
ists, or  reformers  come  to  propose  the  betterment  of  the 
human  race  by  plausible  legislative  expedients,  .it  is 
not  for  an  historical  work  to  criticize  them.  What  we 
shall  say  is  addressed  nevertheless  to  modern  projects 
without  being  irrelevant  to  history ;  for  the  idea  of  human 
breeding  is  very  old,  and  the  past  seems  to  have  realized 
it  even  better  than  the  present,  if  such  a  thing  were 
possible. 

1:  Futility  and  Inefficiency  of  Institutions  based  on 
Selection.  Selective  institutions  are  numerous  enough  in 
past  legislations:  such  were  the  right  of  the  father  of  a 
family  to  expose  sickly  or  crippled  children,  physical  ex- 
amination before  marriage,  and  systematic  extermination 
of  certain  races  or  individuals.  The  selective  institution 
never  presented  itself  under  the  same  steady  and  methodi- 
cal forms  through  which  man  has  been  able  to  influence 
domestic  animals  and  edible  vegetables.  And  the  reasons 
for  this  are  those  which  are  identically  the  same  in  every 
age,  and  the  same  answers  can  be  made  to  Plato  and  the 


§5]  SELECTION  IN  LEGISLATION  129 

most  modern  Utopians.  From  the  one  to  the  others,  there 
have  been  many  who  have  fashioned  "Future  States," 
and  it  cannot  be  said  that  they  have  gone  on  improving 
in  intellectual  value.  Quite  the  contrary;  a  genius  like 
Plato  would  not  today  conceive  the  idea  of  making  a  so- 
called  ideal  constitution  and  afterwards  create  the  hu- 
manity which  would  have  to  adapt  itself  to  this  constitu- 
tion. This  method  can  no  longer  be  represented  among 
us  except  by  minds  which  are  not  of  the  same  calibre.  A 
very  slight  acquaintance  with  science  is  sufficient  to  con- 
vince any  one  that,  if  it  is  possible  to  make  institutions 
to  suit  men,  it  is  not  possible  to  make  men  to  suit 
institutions. 

Plato's  project  was  not  lacking  in  logic.  But  what  it 
proposed  as  evident  was  essentially  false.  He  believed 
that  well-directed  instruction  and  education  could  supply 
individuals  with  the  necessary  civic  and  moral  qualities. 
He  thought  it  possible  to  construct  upon  dialectics  the  Re- 
public eternally  ideal  for  all  humanity.  It  was  entirely 
natural  that  he  should  have  conceived  the  project  of 
forming,  by  selection,  very  robust  bodies  in  order  to  store 
in  them  sound  instruction  in  virtue.  But  now  we  can  no 
longer  make  the  double  mistake  of  Plato ;  we  know  that 
there  cannot  be  any  society  which  would  be  ideal  and  ab- 
solutely suitable  for  all  times  and  all  places,  and  that  it  is 
impossible  to  make  the  man  of  the  future,  since  we  are 
ignorant  of  that  future  and  of  the  qualities  which  would 
be  desirable  at  that  time.  We  know,  moreover,  that 
whatever  may  be  its  importance,  education  does  not  add 
a  cubit  to  the  stature,  and  that  our  humanity  as  it  now 
exists  does  not  present  any  harmonious  relationship  be- 
tween the  physical  and  the  moral.  Our  civilizations  de- 
mand an  infinity  of  special  talents,  of  exceptional  virtu- 
osities, in  the  face  of  which  general  qualities  count  for 
little.  It  would  be  childish  simply  to  imagine  that  we 
can  calculate  the  qualities  which  will  be  most  useful 


130  SELECTION  AND  THE  LAW        [Cn.  IV 

within  the  next  generation.  Technics  become  trans- 
formed very  rapidly  and  one  who  has  all  the  qualities 
necessary  to  carry  on  successfully  a  profession  at  the 
present  time  would,  perhaps,  be  completely  displaced  in 
the  not  distant  future. 

If  we  knew  into  what  path  humanity  were  to  be  di- 
rected, even  then  selection  would  be  a  very  imperfect 
instrument.  It  is  an  extremely  slow  process  of  racial 
betterment,  and  one  from  which  we  must  ask  very  little. 
To  produce  an  appreciable  effect,  it  would  be  necessary 
to  combine  it  with  the  race ;  to  seek  purity  of  race  as  much 
as  individual  qualities,  and  to  try  and  make  human  cross- 
ings with  a  view  to  producing  derived  races  which  would 
have  certain  peculiar  qualities,  but  to  suppress  products 
that  might  not  be  successful  (which  is  most  frequently 
the  case)  —  in  short  to  do  all  that  serious  breeders  do. 
Otherwise,  it  would  be  absolutely  impossible  to  hope  for 
any  result  whatever. 

The  law  therefore  must  renounce  the  creation  of  choice 
individuals  by  means  of  selection.  Such  a  scheme  would 
collide  with  moral  and  material  impossibilities,  and  not 
to  understand  this  is  to  ignore  completely  all  questions 
of  breeding.  But  in  order  to  prevent  the  degeneracy  of 
a  country,  is  it  necessary  to  eliminate  individuals  who 
are  morally  or  physically  injured  and  prevent  them  from 
reproducing?  This  is  necessary  to  a  certain. extent,  but 
only  to  the  extent  that  has  always  been  practiced  up  to 
the  present  time. 

2:  Right  and  Justice  as  involved  in  Selective  Institu- 
tions. The  right  of  suppressing  those  who  have  killed 
others  has  always  been  recognized,  since  it  has  been  proved 
that  they  would  constitute  a  peril  for  all  humanity  if 
they  were  allowed  to  go  free.  As  for  the  hunch-backs, 
the  blind,  and  the  infirm  of  every  kind,  we  pity  them  but 
never  dream  of  suppressing  them.  No  doubt,  if  instead 
of  the  idiot  who  begs  at  the  door  of  a  cafe,  an  intelligent, 


§5]  SELECTION  IN  LEGISLATION  131 

robust  being  had  been  born,  the  collectivity  would  be 
better  off,  and  we  should  be  partially  benefited  by  it. 
If  he  were  capable  of  helping  the  cook,  our  beefsteaks 
might  be  more  perfectly  done  to  a  turn  and  our  coffee 
better  prepared.  We  are  all  interested  in  raising  the 
human  level,  but  we  have  no  rights  in  it.  And  if  theorists 
strive  to  discover  by  what  principle  I  can  demand  the 
destruction  of  one  who  has  shown  his  intention  of  de- 
stroying me,  how  can  they  establish  my  claim  to  the  non- 
existence  of  a  hunch-back,  under  the  pretext  —  a  very 
questionable  one  besides  —  that  if  he  did  not  exist  I  might 
enjoy  some  superior  material  or  intellectual  advantages  ? 
Theories  upon  the  right  to  punish  have  missed  the  path 
of  abstraction  where  thought  is  rigorously  directed,  and 
fallen  into  phraseology  where  it  is  dissipated  and  remains 
powerless.  It  would  be  fortunate  if  it  were  possible  to 
render  such  theories  more  positive  by  the  theory  of  se- 
lection. Unhappily,  selection  is  only  a  word  which  can 
satisfy  neither  the  most  elementary  logic  nor  the  most 
brutal  realism.  To  say  that  society  punishes  in  order  to 
select  is  not  to  strengthen  its  authority,  for  if  we  do  not 
know  where  we  get  the  right  to  punish,  suppress,  or 
lessen  the  number  of  those  who  have  occasioned  direct  and 
unquestionable  injuries,  where,  indeed,  can  we  get  the 
right  to  select  and  suppress  those  who  have  wronged  no 
one  and  perhaps  never  will?  If  professors  of  criminal 
law  had  to  write  a  chapter  "On  the  Right  to  Select," 
it  is  probable  that  they  would  renounce  every  theoretical 
argument  that  had  become  absolutely  untenable,  and  find 
themselves  reduced  to  the  conclusion,  "We  select  because 
it  is  useful." 

Now  this  selecting  might  be  neither  useful  nor  bene- 
ficial, because  degenerates  may  quite  as  well  be  superior 
as  inferior.  These  little  stunted  and,  perhaps,  even  de- 
formed, beings  are  perhaps  representatives  of  a  particu- 
larly civilized  and  pitiful  humanity,  which  is  capable  of 


132  SELECTION  AND  THE  LAW       [  CH.  IV 

restricting  its  horizon  and  enclosing  a  certain  intellectual 
capacity  in  something  which  costs  very  little  to  feed  and 
house. 

The  reconciliation  between  justice  and  legislative  se- 
lection does  not  seem  to  me  to  have  been  expressed  in 
practical  terms.  The  applications  proposed  are  either 
scarcely  selective  or  entirely  unjust.  This  last  qualifica- 
tion may  be  applied  to  every  measure  which  would  shackle, 
directly  or  indirectly,  by  threat  or  advice,  the  liberty  of 
action  or  of  propagation  of  individuals  who  have  not 
violated  the  penal  law. 

When  it  is  a  question  of  individuals  who  have  been 
found  guilty  of  offences  and  crimes  of  a  nature  to  harm 
others,  it  would  then  be  lawful  to  take  advantage  of  the 
occasion  to  give  satisfaction  to  the  partisans  of  selection, 
without  wronging  the  principles  of  justice.  It  would 
even  be  possible  to  give  them  more  authority  by  observing 
the  principle  of  selection.  It  would  be  necessary,  as  has 
been  suggested,  to  add  medical  to  legal  jurisdiction,  so 
that  those  who  escaped  legal  sentence  on  the  ground 
of  irresponsibility,  would  fall  under  medical  sentence, 
which  would  be  less  morally  and  physically  painful,  but 
a  better  agent  of -elimination.  If  we  must  facilitate  the 
restoration  of  the  accidental  criminal  after  he  has  been 
made  to  expiate  his  fault,  it  behooves  us  not  to  make  the 
born  criminal  who  is  not  responsible  for  his  actions  suffer 
uselessly,  but  to  annul  definitively  his  existence  by  pre- 
venting his  return  into  society.  Thus  the  institution  of 
medical  penalties  would  be  a  benefit  to  the  law;  through 
them,  there  would  disappear  those  insipid  and  intermin- 
able discussions  upon  the  responsibility  of  the  accused, 
and  those  dangerous  acquittals,  —  wrung  from  the  weak- 
ness of  a  jury  to  the  advantage  of  beings  who  are  es- 
sentially harmful,  but  who  succeed  in  regaining  their 
original  social  position,  while  others  who  are  less  guilty 
and  better  balanced  are  forever  excluded  from  it.  But 


§5]  SELECTION  IN  LEGISLATION  133 

medical  penalties  would  not  be  beneficial,  just,  and  jurid- 
ical, except  under  the  condition  sine  qua  non  of  their 
being  reserved  for  the  accused  for  whom  was  pleaded 
irresponsibility  or  the  weakening  of  responsibility,  conse- 
quent upon  their  mental  state,  or  who  had  been  officially 
submitted  to  conclusive  expert  authority  in  the  matter. 

This  example  proves  that  there  is  no  incompatibility 
between  the  biological  and  the  purely  juridical  idea  to 
which  the  considerations  explained  above  pledge  us  to  re- 
main faithful.  But  the  idea  of  selection  cannot  suffice  to 
constitute  the  theoretical  or  the  practical  basis  of  any  part 
whatever  of  law. 

BIBLIOGRAPHY 

DARWIN,  The  Origin  of  Species. 

HARTMANN,  Le  Darwinisme,  ch.  V;  LAMARCK,  Zoologie,  Philo- 
sophic; WEISMANN,  Vortrage  uber  Deszendenztheorie  (1902);  DE 
GREEF,  Le  transformisme  social;  E.  DE  LAVELEYE,  Le  socialisme 
contemporain ;  JACOB Y,  fitudes  sur  la  selection;  H.  SPENCER,  Prin- 
ciples of  Biology,  Principles  of  Sociology,  Social  Statics. 

YVES  DELAGE,  Les  problemes  de  1'evolution;  PLATE,  Ueber  die 
Bedeutung  des  Darwinschen  Selektionsprinzips  (1903);  KRAEMER, 
Die  Controverse  uber  Rassenkonstanz,  and  Bibliography  of  this 
work;  BERNARD,  Les  croisements  et  la  selection  au  point  de  vue  des 
inteVets  e'conomiques  de  1'eleveur  (1882);  JUSTINUS,  Allgemeine 
Grundsatze  zur  Vervollkomnung  der  Pferdezucht  (1815). 

H.  VON  NATHUSIUS,  Vortrage  uber  Viehzucht  und  Rassenkenntnis 
(1890);  VICOMTE  LE  VILLEBRESME,  Theorie  pratique  et  e"conomique 
de  1'elevage;  GAL  TON,  Discontinuity  in  Evolution,  Natural  Inherit- 
ance; OTTO  AMMON,  Les  phases  naturelles  de  1'Ordre  social  (trans, 
by  Muffang,  1900);  DE  LAPOUGE,  Selections  sociales;  FAIVRE,  De  la 
variability  des  especes. 

DELAUNAY,  De  la  disparition  des  6tres  supe'rieurs,  in  Bulletin  de 
la  Sociele  d' Anthropologie,  I,  VI,  3d  series;  COLLINS,  The  Philos- 
ophy of  Herbert  Spencer;  HAYCRAFT,  Naturliche  Auslese  und 
Rassenverbesserung ;  OTTO  SEECK,  Geschichte  des  Unterganges  der 
antiken  Welt;  GINA  LOMBROSO,  I  vantaggi  della  degenerazione 
(1904);  HAECKEL,  WOLTMANN,  REIBMAYER,  KUHLENBECK,  and  the 
majority  of  the  works  cited  in  the  two  preceding  chapters. 


CHAPTER  V 
SOCIAL  PSYCHOLOGY  AND  THE  LAW 

§  1.  Psychology,  Social  Psychology  and  Legal  History 
Distinguished.  We  have  admitted  biological  facts  among 
the  causes  of  the  law.  They  are  not,  however,  its  im- 
mediate causes.  They  select  the  living  beings  who  take 
part  in  juridical  development;  they  influence  the  thought 
of  these  beings  and  determine  to  a  greater  or  less  extent 
their  intellectual  qualities.  But  between  the  physiolog- 
ical phenomenon  and  the  birth  of  a  law  or  an  institution, 
human  thoughts  must  necessarily  be  produced.  The  law 
is  the  effect  of  the  expression  of  certain  of  these  thoughts. 
We  shall  seek  in  them  the  psychological  causes  of  the  law. 

Psychology  has  been  defined  as  the  science  of  individual 
facts  of  consciousness.  Every  psychological  fact  is  an. 
organic  or  cerebral  work  concerning  which  the  animal  or 
the  man  who  performs  it  has  a  more  or  less  complete 
consciousness.  By  the  word  "individual"  we  mean  to 
place  an  important  restriction  upon  the  definition.  If 
this  cerebral  work,  accompanied  by  the  same  degree  of 
consciousness,  is  brought  about  by  society,  if  it  is  pro- 
duced in  an  animal  living  with  other  animals,  under  a 
particular  form  that  the  work  could  not  have  had  if  this 
animal  had  lived  in  isolation,  it  would  no  longer  con- 
stitute a  psychological,  but  a  social  phenomenon;  it  would 
be  the  object  of  study  of  another  science,  of  the  science  of 
facts  which  result  from  life  in  society,  that  is,  of  social 
science,  or  sociology. 

If  this  definition  were  taken  literally,  it  might  be  feared 
that  psychology  would  become  not  much  of  anything, 

134 


§  1]      PSYCHOLOGY  AND  LEGAL  HISTORY     135 

perhaps,  even  nothing  at  all,  and  would  die  out  for  lack 
of  an  object.  For  it  studies  above  all  else  the  mental 
operations  and  sentiments  of  man;  and  since  man  has 
always  lived  in  society,  he  would  not,  had  he  remained 
isolated,  have  the  same  methods  of  reasoning  and  the 
same  affections  which  we  now  find  in  him;  so  that  if  we 
studied  the  love,  the  friendship,  the  avarice,  or  the  power 
of  abstraction  or  of  generalization  of  modern  civilized 
man,  we  should  be  engaged  in  sociology  and  not  psychol- 
ogy. On  the  other  hand,  sociology  is  a  very  young 
science,  still  but  insufficiently  determined.  It  has  pro- 
duced a  great  number  of  works,  .inspired  by  different 
principles  and  not  observing  the  same  attitude  toward 
the  old  individual  psychology.  Facts  of  consciousness 
are  studied  therein,  but  likewise,  many  other  facts  of  a 
very  different  nature,  so  that  the  proposed  terminology 
is  essentially  vicious  and  could  only  lead  to  confusion. 

Let  us  therefore  say  that  psychology  is  the  science  of 
all  the  facts  of  individual  or  social  consciousness;  but  as 
it  is  allowable  to  study  man  as  we  see  him  without  con- 
cerning ourselves  with  his  past,  to  observe  to  what  ex- 
tent his  mental  life  depends  upon  his  physiological,  and 
to  criticize  his  forms  of  reasoning,  some  of  which  lead  to 
error,  others  to  truth,  we  shall  distinguish  an  individual 
psychology  which  will  set  aside  the  fact  that  man  is 
a  social  being.  For  those  who,  on  the  contrary,  wish  to 
discover  in  what  respect  man  is  dependent  upon  his  en- 
vironment and  to  determine  how  various  forms  of  so- 
ciety have  influenced  our  sentiments,  or,  indeed,  even  how 
the  actual  individual  becomes  changed  through  contact 
with  his  fellow-men,  we  shall  reserve  the  expression 
social  psychology. 

The  majority  of  sociologists  are  engaged  in  social 
psychology.  They  thus  reveal  new  forms  of  thought 
which  the  observer  of  the  detached  individual  cannot  dis- 
cover; they  also  throw  new  light  upon  the  origin  of  our 


136  SOCIAL  PSYCHOLOGY  [Cn.V 

feelings  and  our  ideas.  By  virtue  of  the  establishment  of 
the  double  truth  that  human  thought  is  the  product  of 
institutions,  and  institutions  the  product  of  human 
thought,  the  legal  historian  cannot  neglect  this  part  of 
sociology  without  leaving  an  important  gap  in  his  work. 
This  is  not  saying  that  he  ought,  even  for  the  length  of  a 
single  chapter,  to  become  a  sociologist  and  erect  a  new 
structure  in  a  country  where  architects  and  builders  are 
not  lacking.  To  discuss  facts  which  have  been  pointed 
out  by  the  social  sciences  does  not  amount  to  discussing 
the  sciences  themselves.  Each  sociological  system  is  a 
totality  of  axioms,  experimental  verifications,  and  prin- 
ciples of  method;  it  might  be  possible  to  encounter  poor 
observations  in  a  good  system  and  good  observations  in 
a  bad  system.  The  history  of  law  remains  different  from 
sociology  even  when  it  deals  with  the  same  matters.  In 
the  former,  we  study  particularly  the  causal  bond  which 
may  connect  certain  phenomena,  while  sociologists  ob- 
serve rather  the  phenomena  themselves,  classify  them, 
group  them,  and  seek  their  uniformity.  We,  on  the  other 
hand,  are  preparing  to  make  the  analysis  of  particular 
causes  by  a  theoretical  analysis  of  the  uniformities  which 
are  presented  to  us.  Good  tactics  for  a  historian  might 
be  bad  ones  for  a  sociologist.  Thus  our  analysis  of  social 
psychology  as  a  juridical  cause  is  not  sociology. 

The  law  is  a  social  fact  by  reason  of  its  function.  It 
estimates  the  mutual  interests  of  persons  destined  to  live 
together  and  does  this  with  all  the  more  minutiae  as  this 
common  life  is  continuous  and  intimate.  The  tendency 
of  the  law  is  to  express  sentiments  of  sympathy,  or,  at 
least,  of  sympathetic  indifference,  and  the  desire  to  live 
in  peace  and  harmony  with  one's  neighbor.  Finally,  it 
is  social  in  the  method  of  its  elaboration ;  it  is  promulgated 
by  human  assemblies  or  by  individuals  who  are  the  in- 
fluence of  their  social  surroundings  and  who,  in  every  in- 
stance, whatever  their  intellectual  independence,  owe  to 


§2]  INDIVIDUAL'S  RELATION  TO  SOCIETY  137 

their  individual  or  hereditary  education  the  power  of  pre- 
scribing laws  to  their  fellow-citizens. 

§  2.  Psychological  Relations  between  the  Individual  and 
Society.  For  the  moralist  to  preach  modesty  and  solidar- 
ity, nay,  even  fraternity,  to  the  boastful  individual  who 
is  too  much  inclined  to  believe  himself  self-made,  it  is 
sufficient  to  show  how  every  one's  material  life  depends 
upon  other  men,  upon  social  organization.  Sully- 
Prudhomme's  dreamer  who  believed,  for  an  instant,  that 
he  was  reduced  to  making  his  own  bread,  his  own  clothes 
and  his  own  dwelling,  received  a  wonderful  lesson  in 
philanthropy.  But  this  material  dependence  of  each  upon 
all  is  completely  foreign  to  our  investigations.  It  is  the 
intellectual  or  psychologic  dependence  of  man  upon  the 
social  group  which  alone  interests  us,  and  in  this  respect 
ideas  are  particularly  confused.  Social  bonds  are  nu- 
merous and  of  a  varied  nature.  It  behooves  us  to  dis- 
engage a  few  of  the  most  important  types. 

1:  INDIVIDUAL  SENTIMENTS  HAVING  THE  COLLECTIV- 
ITY AS  THEIR  OBJECT.  Sociability  is  a  feeling  of  pleasure 
which  the  individual  experiences  in  forming  part  of  a 
group,  in  living  in  common  with  other  men  even  when 
the  needs  of  the  material  or  the  intellectual  life  do  not 
demand  it.  This  sentiment  exists,  in  our  time,  in  varying 
degrees,  in  the  breast  of  nearly  every  human  being, 
whether  child  or  old  person,  and  plays  an  important  part 
in  life.  It  is  collective  in  the  sense  that  through  it  we 
have  an  affection  for  a  certain  form  of  solidarity  much 
more  than  for  the  individuals  which  correspond  to  it. 
One  clings  to  his  own  fireside,  but  is  quite  ready  to  leave  it 
to  form  another;  another  likes  club  life,  but  this  will  not 
make  him  regret  quitting  the  one  which  he  has  frequented 
for  many  years,  for  another  where  he  will  no  longer  see 
the  same  persons,  if  he  finds  there  the  same  customs; 
there  are  some  patriots  who  are  much  more  concerned 
over  the  honor  of  their  country  than  over  the  life  of  those 


138  SOCIAL  PSYCHOLOGY  [Cn.V 

who  compose  it.  Every  day  we  are  treated  as  "Dear 
fellow-citizen,"  "  Dear  fellow  patriot,"  "Dear  comrade," 
or  " Dear  colleague"  by  men  who  are  fond  of  us  in  so  far 
as  we  are  members  of  a  certain  group,  but  will  not  weep 
much  at  our  funeral. 

Philanthropy,  altruism,  charity,  and  humanity  have  the 
individual  for  their  object  and  not  a  collectivity.  But 
they  are  addressed  to  man  because  he  is  man,  and  they 
neglect,  on  principles,  his  individual  qualities.  They 
treat  him  as  something  fungible,  and  it  is  not  very 
pleasant  to  submit  to  them.  "It  is  better  to  excite 
envy  than  pity,"  say  we  with  the  profound  Mme. 
Josserand,  who  in  Zola  is  the  incarnation  of  the  most 
positivistic  conceptions  of  life. 

Although  the  person  who  envies  us,  detests  us,  and  he 
who  pities  us,  sympathizes  with  us,  we  prefer  the  first 
because  he  considers  us  more  individually  and  degrades 
us  less  in  our  own  eyes  than  the  second.  Philanthropy  is 
not  objectively  collective;  it  is  in  regard  to  its  object 
a  neutral  individual  sentiment. 

In  every  respect,  the  sociable  and  the  philanthropic 
man  are  two  entirely  different  beings.  Sociability  cor- 
responds to  affection,  esteem,  hate  or  contempt.  There 
are  individuals  who  have  a  horror  of  solitude,  cannot  re- 
main five  minutes  with  their  own  thoughts,  and  need 
others  to  keep  them  from  being  bored,  even  though  there 
is  no  congeniality  between  them. 

Romantic  literature  brought  into  prominence  a  type  of 
sceptical  hedonist  who  parades  "his  superb  scorn  of  the 
dead  and  the  living,"  but  who  takes  care  to  do  so  in 
places  where  people  see  it  and  are  amused  by  it.  We  are 
acquainted  nowadays  with  the  worldly  anarchist  who 
hates  the  society  by  which  he  benefits  and  without  which 
he  would  not  exist.  The  sociable  and  the  philanthropic 
are  not  the  same  and  do  not  run  across  one  another  in 
the  same  environment.  More  of  the  latter  are  found  in 


§2]   INDIVIDUAL'S  RELATION  TO  SOCIETY  139 

the  scholar's  study,  in  isolated  vicarages  of  ministers  of 
different  religions,  or  even  in  the  kitchens  of  old  maids, 
than  in  parliaments,  exchanges,  drawing-rooms  or  even 
charitable  societies.  It  seems  that  in  order  sincerely  to 
love  humanity  as  a  whole,  it  is  better  not  to  associate  too 
closely  with  groups  that  are  over  large.  Between  the 
two  sentiments,  one  of  which  makes  us  love  men,  the 
other  the  society  of  men,  there  is  evidently  no  necessary 
incompatibility.  In  any  case  they  are  quite  different, 
and  we  do  not  always  make  a  clear  enough  distinction 
between  them. 

Both  are,  moreover,  individual  as  regards  their  subjects. 
They  exist  in  everybody  to  varying  degrees,  and,  equally 
personal  reasons  develop  or  atrophy  them.  To  be 
friendly,  patriotic  or  kind  to  one's  neighbor  is  a  question 
of  character.  Circumstances  entirely  peculiar  to  the  life 
of  each,  success  or  failure,  good  fortune  or  bad,  illusion  or 
disillusion,  induce  us  to  live  in  the  outside  world  or  cause 
us  to  seek  retirement.  Nevertheless,  as  is  the  case  with 
every  other  individual  sentiment,  philanthropy  and  so- 
ciability may,  in  exceptional  instances,  owe  their  birth  to  a 
collective  impetus.  Patriotic  impulse  may  drag  men  very 
indifferent  by  nature  into  contact  with  a  patriotic  crowd. 

The  origin  and  the  historic  role  of  these  two  sentiments 
are  still  doubtful.  Did  man,  as  was  formerly  believed, 
establish  families,  tribes,  and  states  because  he  was 
sociable  and  was,  owing  to  his  psychological  constitution, 
bored  by  being  alone?  In  our  day  we  are  rather  inclined 
to  believe  the  contrary.  Our  sociability  would  arise 
from  former  habits,  and  the  social  groupings  which  we 
effect  would  result  from  causes  less  known  and  probably 
more  material.  At  present,  the  question  is  absolutely 
undecided. 

2:  INDIVIDUAL  PSYCHOLOGY  CREATED  BY  SOCIAL 
LIFE.  The  human  heart  and  brain  are  not  developed  in 
solitude.  We  are  made  in  the  image  of  the  social  environ- 


140  SOCIAL  PSYCHOLOGY  [CH.V 

ment  through  which  we  and  our  ancestors  have  passed.  If 
these  ancestors  lived,  and  we  were  still  living,  in  caves,  we 
could  possess  neither  very  profound  knowledge,  refined 
feelings,  nor  powerful  logic.  Knowledge,  wit,  talent,  and 
genius  are  formed  by  social  contact. 

This  is  no  reason  to  believe  that  noble  influences  are  at 
work  in  the  electoral  mass,  and  that  fireworks  should  be 
set  off  in  its  honor.  This  social  contact  which  inspires  the 
individual  energy  or  "elan"  does  not  do  so  by  furnishing 
directly  ideas  and  sentiments  which  have  been  more  or 
less  fashioned  in  common.  Nothing  resembles  less  an  in- 
tellectual collaboration  than  this  action  of  men  upon  one 
another.  Nevertheless,  it  is  often  quite  right  to  affirm 
that  ideas  are,  as  it  is  said,  in  the  air,  and  that  genius  is  a 
product  of  environment. 

(a)  Education  by  Competition,  as  a  Fact  of  Individual 
Psychology.  Let  us  suppose  that  the  same  problem  is  put 
to  a  great  many  people.  If  the  problem  is  very  simple, 
everyone  will  solve  it  and  accordingly  no  one  will  acquire 
any  celebrity;  if,  on  the  contrary,  it  is  very  difficult,  if 
many  try  to  solve  it  without  success,  and  if  a  brain  more 
powerful  than  the  rest  proceeds  to  bring  forward  a  solu- 
tion and  this  solution  is  unquestionably  the  right  one,  he 
will  be  considered  a  genius.  The  problems  which  are  and 
have  been  put  to  humanity  are  of  a  varied  nature,  —  tech- 
nical, philosophical,  aesthetic  and  juridical.  In  all  these 
domains,  there  are  questions  which  are  of  interest  to  a  num- 
ber of  persons,  the  whole  nation,  or  even  all  civilized  races. 
A  successful  solution  will  procure  the  most  immediate  and 
brilliant  rewards.  One  may  then  delude  oneself,  up  to  a 
certain  point,  with  the  idea  of  a  collective  work  of  which 
one  man  is  the  fortunate  beneficiary,  and  this  is  not  ab- 
solutely false.  The  interest  of  the  public  is  at  first  a 
stimulant  for  the  worker  and,  consequently,  an  aid;  all 
those  who  have  contended  with  the  same  difficulty  have 
traveled  a  greater  or  less  distance  on  the  road  to  truth,  in 


§2]    INDIVIDUAL'S  RELATION  TO  SOCIETY   141 

company  with  the  prophetic  genius,  and  therefore  have 
collaborated  with  him  up  to  a  certain  point.  Finally, 
the  same  question  having  been  propounded  to  a  consider- 
able number  of  brains,  it  is  not  astonishing  that  there  are 
found  among  them  a  few  of  equal  power  who  independ- 
ently of  one  another  give  the  correct  answer  at  the  same 
time. 

There  are  other  problems  which  may  be  more  difficult 
than  the  first,  and  of  a  broader  scope,  but  are  of  interest 
to  only  the  smallest  possible  number  of  persons.  Up  to 
the  time  when  the  public  interest  is  attracted  to  them  for 
one  reason  or  another,  those  who  solve  them  enjoy  no 
popularity.  These  unrecognized  geniuses  are  the  ab- 
solute proof  of  the  individuality  of  scientific,  artistic  and 
literary  work.  They  cannot  get  their  ideas  from  the 
masses  since  the  masses  are  ignorant  of  or  scoff  at  them. 
Nevertheless,  they,  like  popular  geniuses  and  almost  to 
the  same  degree,  are  the  products  of  their  environment. 
The  environment,  the  circumstances  of  their  external  and 
social  life,  state  the  equations  which  they  have  to  reduce. 
Their  labors,  generally  quite  unappreciated  by  their 
fellow-citizens,  who  are  as  much  strangers  to  their  (mental) 
preoccupations  as  a  camel  would  be  to  the  North  Pole, 
express,  nevertheless,  the  relation  which  exists  between 
the  cerebral  power  of  the  worker  and  that  of  the  masses. 
These  geniuses  are  not,  therefore,  independent  beings,  for 
their  productions  would  be  influenced  by  any  variation 
affected  in  the  general  intellectual  level,  even  though 
there  existed  no  resemblance,  harmony,  or  understanding 
between  these  two  elements. 

Take  as  an  example  the  litterateurs  of  the  Parnassian  and 
the  decadent  schools.  The  majority  of  them  led  mediocre 
or  wretched  lives;  their  books  were  not  bought  nor  their 
plays  acted  at  the  theatre.  They  had  not,  and  still 
hardly  have,  anything  in  common  with  the  crowd.  Never- 
theless, the  majority  of  young  men  of  talent  cf  the  same 


142  SOCIAL  PSYCHOLOGY  [Cn.V 

period,  even  without  knowing  one  another,  express  the 
same  tendencies  of  correction,  investigation  or  sensibility, 
which  appear  wholly  exaggerated  to  the  public  at  large. 
The  number  of  Parnassians  and  decadents  does  not  sig- 
nify that  they  are  a  product  of  the  masses,  with  which 
they  have  nothing  to  do,  but  that  they  are  a  product  of 
the  environment.  That  is  to  say,  that  certain  writers 
who  had  reached  a  certain  degree  of  intelligence  and 
aesthetic  taste,  could  no  longer  find  refined  enough  artistic 
pleasure  in  old  works.  Brought  face  to  face,  through 
literary  environment  and  public  taste,  with  the  same 
problem,  viz.,  to  escape  what  was  to  them  the  common- 
place in  thought  and  expression,  they  gave,  independently 
of  one  another,  very  similar  solutions. 

Social  environment  signifies  the  totality  of  social 
things  with  which  the  human  being  is  surrounded  from  the 
cradle  to  the  grave,  that  is  to  say,  with  other  men  and  with 
the  things  which  those  other  men  have  created.  The  in- 
dividual, through  choice  or  necessity,  is  subjected  to  this 
new  environment  and  is,  up  to  a  certain  point,  its  product; 
although  he  preserves  entirely  at  the  same  time  the 
power  of  hating  it,  of  decrying  its  merits,  or  of  working 
in  a  direction  contrary  to  the  general  collective  work.  It 
acts  quite  as  well  by  reaction  as  by  action,  by  repulsion 
as  by  attraction.  We  need  ipecac  which  nauseates  us, 
just  as  much  as  the  most  appetizing  and  digestible  soups. 
Likewise,  those  who  maintain  that  almost  all  of  our  in- 
tellectual faculties  are  of  social  origin,  are  not  absolutely 
wrong  in  recognizing  that  our  fellow-creatures  have  often 
been  of  service  by  being  for  us  and  our  ancestors,  an  end- 
less source  of  weariness,  vexation,  pain  and  fear. 

Man,  some  one  says,  owes  a  great  deal  to  other  men  for 
having  been  much  annoyed  by  them.  Savage  beasts, 
intemperate  climates,  and  diseases  would  not  have  been 
scourges  severe  enough  to  have  awakened  his  intellectual 
power.  An  enemy  worse  than  wild  animals,  famines,  or 


§  2  ]    INDIVIDUAL'S  RELATION  TO  SOCIETY     143 

pestilences  was  necessary,  and  this  enemy  he  could  only 
find  in  his  fellow-man.  The  vanquished  has  gained  more 
than  the  victor  from  the  social  life  because  he  has  suffered 
from  it  more.  To  find  food  and  defend  themselves 
against  natural  forces,  the  intellectual  stage  of  the  higher 
animals  is  amply  sufficient.  The  superiority  of  the 
human  animal  can  only  be  understood  by  the  necessity 
which  has  compelled  him  to  struggle  against  obstacles 
which  other  animals  did  not  understand.  These  ob- 
stacles could  come  to  him  only  from  social  life.  The 
logical  conclusion  of  such  a  statement  is  that  society  is 
all  the  more  an  instrument  of  improvement  when  we 
suffer  a  great  deal  in  it.  For  our  descendants  to  be- 
come improved  in  their  turn,  and  for  humanity  to  be 
raised  indefinitely,  it  would  be  necessary  to  try  to  create 
for  them  many  annoyances. 

No  one  formulates  this  conclusion.  In  his  most  ele- 
mentary, as  well  as  in  his  most  advanced  institutions,  man 
has  always  sought  mental  and  physical  rest.  When  these 
institutions  have  brought  him  suffering,  uncertainty  of 
the  future,  and  great  cerebral  excitement,  he  has  cared 
little  for  them.  Submission  to  usage  and  authority  has 
always  been  presented  as  being  of  a  nature  to  demand 
the  least  personal  initiative,  a  means  of  purchasing  a  little 
peace  and  security  at  the  sacrifice  of  a  little  liberty. 

It  is  equally  true,  however,  that  social  life  creates  new 
difficulties  for  the  individual.  To  manoeuvre  against  a 
common  enemy,  gain  possession  of  the  booty,  share,  pre- 
serve and  exchange  it,  and  get  the  best  of  the  bargain, 
to  wish,  according  to  circumstances,  to  bribe,  frighten  or 
deceive  other  men  —  these  are  everyday  acts  of  the 
most  barbarous  peoples  and  are  evidently  rich  in  psy- 
chological development.  They  teach  one  to  know  one's 
neighbor,  and  consequently,  oneself.  They  exercise  the 
brain  through  observation,  comparison,  abstraction,  and 
efforts  of  memory  and  calculation  which  are,  at  first, 


144  SOCIAL  PSYCHOLOGY  [Cn.V 

very  simple  but  become  more  and  more  complicated;  and 
these  faculties,  developed  for  the  needs  of  collective  life, 
form  the  elements  of  the  individual  power  of  speculation. 

These  incessant  open  or  hidden  hostilities  which  result, 
for  the  individual,  from  life  in  common,  have  been  ex- 
cellent mental  exercise  for  him.  They  explain  how  our 
psychology  has  become  developed.  But  without  the 
previous  existence  of  a  cerebral  substance  already  of 
high  quality  and  capable  of  becoming  educated  in  several 
directions,  the  most  complex  social  life  would  be  of  no 
avail,  and,  moreover,  could  not  be  produced.  To  bring 
pressure  to  bear  upon  an  inferior  being  is  not  sufficient 
to  make  one  of  higher  order.  The  difficulty  to  be  over- 
come is  salutary  when  it  is  proportioned  to  the  strength 
of  the  one  who  must  overcome  it.  Thus,  to  tell  us  that 
man  found  difficulties  in  his  primitive  institutions  is  not 
to  inform  us  how  he  triumphed  over  them,  for  other 
animals  put  in  his  place  would  not  have  been  able  to  do  so. 

(b)  Education  by  Cooperation,  as  a  Fact  of  Individual 
Psychology.  It  is  true  that  if  community  life  brings  its 
vexations  and  struggles,  it  is,  in  other  respects,  an  aid 
and  a  support.  It  furnishes  models  to  be  imitated  by 
all.  It  brings  individuals  face  to  face  with  beings  who 
resemble  him  very  closely  and  yet  are,  at  the  same  time, 
very  different,  and  who  have  ideas,  almost  but  not  quite, 
like  his  own;  and  this  establishment  of  the  fact  of  unity 
in  diversity,  of  differentiation  in  similitudes,  as  psychol- 
ogists say,  has  helped  him  to  understand  himself  in  his 
relations  with  others,  has  been  the  germ  of  the  most 
difficult  conceptions  regarding  his  own  personality,  the 
belief  in  and  doubt  of  himself,  which  form  part  of  the 
fabric  of  the  most  earthly,  practical  life,  as  well  as  of 
the  loftiest  metaphysical  speculations.  On  the  other 
hand,  everyone  has  had  a  friend  or  a  teacher  who  took 
an  interest  in  the  results  of  his  labors  and,  accordingly, 
guided  him,  more  or  less  carefully,  in  his  undertaking. 


§2]    INDIVIDUAL'S  RELATION  TO  SOCIETY    145 

(c)  Education    by    the    Study    of    Social    Products. 
Finally,   social  products  —  or,  more  generally  speaking, 
things  made  and  invented  by  others  as  well  as  by  our- 
selves —  have  acted  upon  and  still  act  upon  our  individual 
faculties.     These  products  may  be  material  or  moral, 
such  as  implements,  monuments,  works  of  art,  institu- 
tions, etc.    They  do  not  throw  us  in  contact  with  other 
human  thoughts,  but  with  objective  verities  of  which  the 
maker  himself  may  have  been  ignorant.     The  workings 
of  a  machine  may  awaken  in  the  lay  mind  ideas  upon  the 
general  mechanism  of  the  universe  with  which  the  mech- 
anician,  engineer  or   inventor  were   little   enough   con- 
cerned.   Each  of  these  persons  is,  in  a  certain  measure,  a 
pupil  of  the  machine  that  instructs  him  and  forms  his 
logic  but  teaches  very  different  things  to  each  and  estab- 
lishes no  bond  of  kinship  between  these  various  minds. 
Law-texts  operate  thus:  the  legislator,  the  bailiff,  the 
commercial  lawyer,  the  magistrate,  the  jurisconsult  and 
the  philosopher  discover  very  different  truths  in  a  legal 
article.    This  social  relationship  is  very  specific  and  has 
little  connection  with  those  preceding.    The  products  of 
human    activity,    detached    from    their    original    cause, 
arouse  thoughts  in  us,  and  very  different  thoughts  ac- 
cording to  the  state  of  mind  of  him  who  studies  or  makes 
use  of  them. 

(d)  Society  as  the  Educator  of  the  Individual,  its  Bene- 
fit.    These  three  methods  of  the  education  of  man  by 
society  (rivalry,  mutual  aid,  and  the  study  of  human 
works)   have  the  common  characteristic  of  being  phe- 
nomena of  individual,  and  not  of  collective  psychology. 
Faculties  which,  at  the  present  time,  are  peculiarly  in- 
dividual, which  we  make  serve  our  personal  ends  and  can 
now  apply  and  develop  in  a  desert  or  a  crowd,  would  not 
be  what  they  are  without  this  triple  social  influence. 
Society  here  presents  itself  as  having  been,  for  us,  an  in- 
direct cause,  an  occasion  of  development.  It  was  a  goad 


146  SOCIAL  PSYCHOLOGY  [Ca.  V 

which  awakened,  excited,  and  kept  on  guard  a  preexisting 
individual,  cerebral  force,  and  permitted  it  while  working 
in  its  own  interest  to  obtain,  in  addition,  an  individual, 
psychological  benefit  from  this  labor. 

What  benefit?  It  is  very  difficult  to  determine  the 
importance  of  this  benefit,  but  we  may  say  that  certain 
authors  have  exaggerated  it  considerably.  The  last  and 
highest  bidders  in  psychological  socialism  maintain  that 
the  individual  is  the  debtor  to  society  for  the  sum  total 
of  his  faculties.  Not  that  isolated  man  would  have  less 
or  differently  developed  intelligence  and  feelings ;  but  that 
he  would  not  have  them  at  all.  He  could,  be  it  under- 
stood, neither  form  abstractions,  nor  generalize,  nor 
classify;  he  would  have  neither  will,  nor  memory,  nor 
perception.  He  would  be  purely  an  instinctive  being,  in- 
tellectually an  idiot.  But  a  few  simple  observations  will 
be  sufficient  to  refute  these  exaggerations.  Animals 
which  form  numerous  groups  are  no  more  intelligent  than 
those  which  live  almost  isolated.  Among  men,  those  who 
live  in  civilization,  in  social  communities,  are  perhaps  of 
a  higher  average  grade  of  intelligence;  there  are,  however, 
very  stupid  persons  among  those  who  take  part  in  the 
most  intense  forms  of  public  life,  and  very  intelligent 
ones  among  savages.  In  any  case,  there  exists  no  regular 
and  proportional  relation  between  the  degree  of  sociability 
and  of  intelligence,  such  as  there  would  be  if  one  was  the 
sole  cause  of  the  other. 

When  we  follow  up  comparisons  between  social  and 
mental  functions,  aside  from  these  facts,  what  are  they 
worth  as  reasoning  ?  Mental  functions  would  be  fashioned 
in  the  likeness  of  those  of  the  social  world.  Thus  human 
consciousness  would  grow  and  improve  just  as  human  so- 
ciety increases  and  integrates.  It  absorbs  new  ideas  from 
every  direction;  this  is  the  first  step.  It  unifies  and  classi- 
fies these  ideas,  and  discloses  their  resemblances;  this  is 
the  second  step.  Thus  states  are  developed  by  concentrat- 


§2]    INDIVIDUAL'S  RELATION  TO  SOCIETY    147 

ing  numerous  and  heterogeneous  groups;  then,  by  disen- 
gaging and  bringing  into  prominence  ideas  which  are  com- 
mon to  all,  and  eliminating  any  dissimilarities.  These  in- 
genious comparisons  have  only  a  verbal  value  and  cannot 
establish  the  least  bond  of  causality  between  ideas  which 
are  by  nature  foreign  to  one  another.  They  are  of  no 
more  interest  than  the  bio-sociological  comparisons  con- 
cerning which  there  has  been  such  an  entire  reversal  of 
opinion. 

Society  has  been  one  of  the  educative  forces  of  the 
human  intelligence;  but  not  the  only  one.  Contact  with 
out-of-door  things,  animals,  plants,  earth,  water,  river, 
sea,  sky,  climate,  seasons  —  all  have  played  the  same  part. 
Hunting,  fishing,  stock-breeding,  agriculture,  and  as- 
tronomy, are  not  as  simple  arts  as  people  are  pleased  to 
call  them.  It  is  quite  impossible  to  admit  that  the  in- 
tellectual effort  expended  in  their  pursuit  has  vanished 
without  leaving  the  least  trace  in  our  psychology,  and  that 
our  brain  is  wholly  fashioned  by  social  labor  alone. 

It  is  none  the  less  true  that  a  psychological  and  also  a 
legal  history  should  deal  with  the  development  of  the 
intellectual  faculties  of  man  under  the  triple  influence  of 
social  struggle,  social  cooperation  and  social  products. 

3:  MIXED  PSYCHOLOGICAL  PHENOMENA.  We  think 
and  act  under  the  almost  continual  influence  of  society. 
We  are  prevented  by  the  law  from  deviating  to  too  great 
an  extent  from  a  certain  line  of  conduct.  All  penal  law 
and  a  large  part  of  civil  law  restricts  our  liberty,  and  the 
good  citizen  takes,  once  for  all,  a  resolution  not  to  violate 
the  law  even  when  it  seems  unreasonable  to  him. 

Public  Opinion.  In  modern  times,  public  opinion  is 
more  tyrannical  than  the  law.  It  controls  and  passes 
judgment  on  everything,  —  our  morality,  our  beliefs,  our 
aesthetic  and  scientific  conceptions,  and  the  details  of  our 
moral  and  material  life.  It  approves,  admires,  blames 
and  scorns ,  and  its  judgments  are  expressed  by  friendly 


148  SOCIAL  PSYCHOLOGY  [Cn.V 

or  hostile  words  and  acts  which  are  often  more  to  be  de- 
sired and  feared  than  any  legal  sanction.  Moreover, 
judicial  decision  is  only  too  often  inclined  to  allow  public 
opinion  to  affect  the  law.  Whatever  the  degree  of  civili- 
zation, and  whether  it  is  a  question  of  the  upper  or  of  the 
lower  classes,  this  opinion  of  the  group  is  the  constant 
preoccupation  of  the  individual,  who  harmonizes  his  acts 
with  the  attitude  in  which  he  wished  to  be  judged. 

Formerly,  this  very  commonplace  truth  was  expressed 
in  terms  of  individual  psychology;  the  pursuit  of  the  ap- 
probation of  others,  tendency  to  imitation,  etc.  Sociologic 
psychologists  see  in  it  only  the  social  element,  the  pressure 
of  the  common  consciousness  upon  the  individual.  Both 
of  these  interpretations  are  incomplete.  Neither  actively 
nor  passively  is  the  phenomenon,  in  reality,  wholly  col- 
lective or  wholly  individual.  In  the  face  of  social  pres- 
sure, men  act  and  react  according  to  temperament.  Some 
submit  to  this  pressure  without  coercion,  conform  in 
taste  perfectly  to  prevailing  opinion,  and  follow  usage  as 
if  they  themselves  had  originated  it.  There  are  others 
for  whom  existence  is  a  perpetual  conflict  with  the  en- 
vironment into  which  they  were  born,  as  well  as  with  the 
country  of  their  choice.  In  history,  we  meet  with  these 
malcontents  who  otherthrow  old  groups  and  form  new  ones 
according  to  their  own  ideas,  but  are  no  more  in  accord 
with  the  second  than  they  were  with  the  first.  We  say 
of  these  men  that  they  do  not  know  what  they  want,  be- 
cause it  would  be  too  painful  for  them  to  follow  the  will 
of  a  group,  and  too  painful  to  a  group  to  follow 
their  will. 

Public  opinion  has  its  rebels.  Among  its  adherents 
there  are  two  categories.  Those  who,  from  a  feeling  of 
duty,  obey  it  with  respect  and  confidence,  and  those  who 
regard  it  with  scornful  scepticism  and  disobey  it  secretly 
without  scruple,  but  recognize  and  proclaim  its  power  and 
its  practical  utility.  And  if  certain  .ones  flatter  without 


§  2  ]     INDIVIDUAL'S  RELATION  TO  SOCIETY    149 

esteeming  it,  others  esteem  without  flattering  it.  They 
do  not  want  public  approbation  even  when  they  desire 
public  admiration.  Some  don  a  new  cloak  to  make  their 
correctness  in  matters  of  dress  appreciated,  others  a 
ragged  one  to  make  their  independence  admired. 

Actively,  the  public  conscience  works  through  the 
agency  of  individuals  who  are  not  wholly  absorbed  by  it, 
who  do  not,  at  any  time,  become  neutral  abstractions, 
and  who  preserve  their  mental  characteristics,  their 
passions  and  their  interests  even  when  they  are  inspired 
by  popular  prompting.  We  often  invoke  social  morality 
to  glorify  some  and  condemn  others.  But  the  former  are 
our  friends  and  we  know  how  to  weave  crowns  for  them 
from  flowers  which  all  are  accustomed  to  admire,  while 
the  latter  are  our  enemies  and  we  exercise  our  ingenuity 
in  discovering  what  can  defame  them  in  the  eyes  of  the 
greatest  number.  We  borrow  from  the  social  capital; 
we  excite  collective  thought  for  our  own  advantage  and 
personal  satisfaction. 

Likewise,  public  opinion  alone  must  not  be  made  re- 
sponsible for  all  the  cruelty  and  meanness  committed  in 
its  name.  It  does  not  deserve  the  greater  part  of  the  im- 
precations heaped  upon  it,  for  if  it  understands  how  to 
manipulate  men,  it  is  only  an  instrument  for  him  who 
knows  how  to  handle  it. 

In  order  to  wield  it,  it  must  be  understood;  to  under- 
stand it,  one  must  become  cognizant  of  its  existence. 
Now  it  exists,  and  the  facts  of  social  pressure  cannot  be 
explained,  actively,  or  passively,  without  it.  In  some 
sociological  works  there  has  been  given  an  example  of 
social  pressure  that  is  homely  enough,  but  has  the  ad- 
vantage of  being  scientifically  quite  characteristic.  Why 
do  we  wear  a  cravat?  To  obey  public  opinion,  no  doubt. 
If  I  do  not  wear  one,  the  street-urchins  will  make  fun  of 
me.  But  what  would  I  care  about  the  street-urchins  if  I 
did  not  know  that  they  represented  a  more  reserved  but 


150  SOCIAL  PSYCHOLOGY  [CH.V 

not  less  severe  public?  And  would  the  urchins  pay  at- 
tention to  me  if  they  did  not  know  that  they  were  upheld 
by  the  general  approval  and  if  they  were  not  proud  of 
being  its  interpreters?  We  are  strangers  in  life  and 
thought,  but  are  united  by  a  net-work  of  collective  psy- 
chology which,  extending  over  a  tremendous  area,  is 
everywhere  the  same;  and  through  it  these  unknown 
persons  of  such  youthful  age  and  insignificant  intellectual 
advancement,  are  judges  whose  jurisdiction  I  cannot  deny. 
Collective  thought  operates  actively  through  their  mouths, 
and  my  passivity  can  be  explained  only  by  the  recognition 
of  this  authority. 

Every  act  of  social  pressure  is  exerted  in  the  name  of  a 
precept  which  derives  the  extent  of  its  force  from  the 
collectivity,  even  when  this  collectivity  does  not  inter- 
vene directly. 

4:  PURELY  COLLECTIVE  PSYCHOLOGICAL  PHENOMENA. 
(1)  Collective  Thought.  We  may  apply  the  term  "phenom- 
enon of  pure  collective  psychology"  to  the  case  where  the 
mental  characteristics  of  each  of  the  members  of  a  group 
are  absolutely  different  in  nature  and  degree  from  the 
mental  characteristics  of  the  group  itself.  Some  tens  or 
hundreds  of  delegates  before  coming  together  are  sincere 
in  their  intention  to  vote  a  certain  way;  having  met 
together  and  discussed  the  question,  they  unanimously 
vote  exactly  the  opposite  way.  This  is  a  curious  fact 
which  will  astonish  the  public  at  large  and  make  it  imagine 
more  or  less  remarkable  things. 

The  phenomenon  is  perhaps  rarely  presented  in  so  de- 
cided a  form.  It  occurs  in  very  varying  but,  nevertheless, 
very  perceptible  degrees  every  time  there  is  any  reunion 
whatever.  We  shall  fail  entirely  to  understand  the 
character,  the  intelligence,  the  good  and  bad  qualities,  in 
short,  the  complete  psychology  of  each  of  its  members, 
if  we  do  not  know  why  they  have  come  together,  under 
what  form,  and  for  what  length  of  time;  in  short,  if  we 


§  2  ]     INDIVIDUAL'S  RELATION  TO  SOCIETY    151 

are  not  acquainted  with  the  complete  mechanism  of  the 
organization,  it  will  be  impossible  for  us  to  understand 
the  attitude  of  each,  and  the  different  thoughts  which 
will  be  expressed  by  the  group.  With  five  or  six  persons 
taken  from  similar  or  from  very  different  environments, 
it  is  easy  to  compose  various  collective  types  of  unlike 
psychology. 

So  clear  an  explanation  has  been  given  of  this  phenom- 
enon, which  has  been  well  known  for  a  long  time,  that  it 
has  been  a  mistake  not  to  follow  all  its  consequences. 
Every  time  that  men  meet  directly,  or  communicate  by 
writing,  there  is  an  exchange  of  ideas,  new  or  common- 
place, practical  or  visionary.  Among  these  exchanged 
ideas,  some  are  common  to  all,  or  appear  to  be  so.  The 
adherence  of  each  individual  to  these  ideas  communicates 
to  them  a  new  force,  and  they  return  to  the  brain  of  each 
no  longer  with  the  timidity  with  which  they  might  for- 
merly have  been  affected,  but  with  a  quite  peculiar  in- 
tensity. What  has  been  energetically  affirmed  and  has 
not  been  contradicted  appears  incontestable.  Psychology 
has  assumed  the  collective  form ;  ideas  which  are  expressed 
and  expressed  the  best,  are  in  the  mental  foreground  of 
everyone  who  can  adhere  to  them  more  or  less  directly; 
while  those  that  are  passed  over  in  silence  or  contradicted, 
remain  in  the  penumbra;  the  whole  has  assumed  an  en- 
tirely peculiar  shape  which  does  not  reproduce  exactly 
the  cerebral  state  of  any  one  person. 

There  exists,  therefore,  a  social  consciousness.  It  is 
formed  not,  as  is  wrongly  said,  by  the  totality  of  the 
sentiments  common  to  all,  or  nearly  all,  citizens,  but  by 
the  totality  of  the  sentiments  approved  by  them.  It  is 
not  enough  that  this  conformity  simply  exists;  it  must 
be  manifested,  be  recognized  by  all;  individuals  must  have 
revealed  themselves  to  one  another,  must  have  exchanged 
thoughts.  Travelers  unknown  to  one  another  seated  in 
the  same  train  compartment  may  be  equally  impatient 


152  SOCIAL  PSYCHOLOGY  [CH.V 

at  an  unaccustomed  delay.  As  long  as  no  one  says  any- 
thing, there  is  no  collective  thought.  It  will  be  born 
only  when  some  one  decides  to  break  the  silence  and  to 
express  his  indignation  at  the  defective  service.  By 
uniting  their  indignation,  their  impatience  and  their 
ennui,  these  persons  will  produce  a  particular  thought  of 
a  special  intensity,  which  is  not  explained  by  the  indi- 
vidual psychology  of  each.  Whereas,  the  idea  which 
everybody  would  have,  but  would  believe  himself  alone 
in  having,  would  be  purely  individual. 

But  we  must  go  further;  real  conformity  of  opinion  is 
not  needed;  apparent  conformity  is  necessary  and  suffi- 
cient. The  most  powerful  agents  of  collective  belief  are 
those  who  make  it  appear  that  they  believe  in  it,  not  those 
who  believe  in  it  most  sincerely.  It  is  not  even  necessary 
for  anybody  to  believe  in  it.  By  attributing  it  to  the 
majority,  each  bestows  upon  it  an  artificial  but  powerful 
existence. 

This  last  case  is  not  rare,  being  rather  the  rule  than  the 
exception.  It  may  spring  from  lack  of  sincerity,  or  from 
the  adroitness  of  those  who  influence  the  masses  and  per- 
suade each  individual  that  the  majority  thinks  as  he  does, 
—  a  process  which  is  well  understood  by  all  candidates  for 
elections,  who  energetically  affirm  their  future  success  in 
order  to  win  votes.  At  other  times,  there  exists  in  the 
social  group  a  tacit  agreement  to  affirm  a  fact  which  each 
knows  to  be  false  or  exaggerated.  Even  without  the  in- 
tervention of  any  deceit  or  hypocrisy,  the  supposed  com- 
mon thought  very  rarely  coincides  with  the  real  general 
thought.  When  men  are  somewhat  differently  educated 
and  of  a  different  class  and  country,  they  possess  but 
very  imperfect  means  of  making  themselves  understood. 
They  may  not,  indeed,  understand  themselves.  To  them 
it  would  be  in  bad  taste  to  insist  too  much  upon  stating 
precisely  their  opinions,  their  impressions  and  their  ob- 
servations; so  that  they  are  rather  compelled  to  express 


§2]    INDIVIDUAL'S  RELATION  TO  SOCIETY    153 

very  different  ideas  according  to  the  environment  in  which 
they  happen  to  be. 

Le  sage  crie  selon  les  gens; 
"Viveleroi!"    " Vive  la  Ligue ! "  1 

He  shouts  thus,  perhaps,  through  self-interest,  policy  or 
duplicity,  but  perhaps,  also,  through  intellectual  neces- 
sity, timidity  or  simple  politeness.  And  accordingly,  the 
world  contains  many  wise  men  who  agree  upon  vague, 
general,  rather  unimportant  propositions  which  represent 
the  thought  of  their  surroundings,  their  collective  thought. 
The  discussion  of  these  propositions  is  banned.  They 
have,  for  the  great  mass,  the  value  of  dogmas,  although 
each  in  his  individual  conscience  may  not  admit  them 
or  consider  them  of  any  importance. 

"Collective  thought"  arises  from  the  bringing  into 
contact  of  several  minds,  consequently  it  does  not  exist 
before  this  contact.  The  process  of  bringing  minds  into 
contact  with  one  another  creates  and  forms  it.  Accord- 
ing as  the  same  persons  are  together,  at  a  hotel  table,  in 
a  drawing-room  or  at  some  literary,  political  or  religious 
assembly,  according  as  they  are  brought  face  to  face  by 
chance  or  in  the  accomplishment  of  some  duty,  they  ex- 
press different  axioms,  uphold  and  cause  to  prevail  per- 
ceptibly different  ideas.  Such  psychology  is  truly  social, 
for  it  arises  every  time  there  is  society  —  the  meeting  of 
a  few  or  of  many  human  beings,  coming  together  for 
pleasure,  for  business  or  to  discuss  political  questions  or 
professional  interests.  These  psychological  phenomena 
constitute  very  different  types;  the  spirit  of  caste,  class, 
profession,  cloister,  family,  or  social  circle.  Some  may 
please  us  and  others  displease  us,  but  each  needs  to  be 
studied  separately  by  comparing  it  with  the  social 
mechanism  to  which  it  corresponds. 

1  As  shouts  the  crowd,  so  shouts  the  sage; 
Long  live  the  King!  Long  live  the  League) 


154  SOCIAL  PSYCHOLOGY  [Cn.V 

(2)  Collective  and  Social  Thought  Confused  in  Certain 
Theories.  Precisely  because  these  phenomena  are  social, 
they  have  no  relation  with  what  in  the  Durkheim  school 
is  called  the  collective  or  social  consciousness,  which  is  de- 
fined as  "the  totality  of  sentiments  common  to  the  mem- 
bers of  the  same  human  society,"  and  upon  which  an 
attempt  is  made  to  base  an  absolutely  fantastic  system  of 
natural  rights.  The  "national  juridical  consciousness"  of 
Savigny  is  an  invention  equally  unreal.  How  can  we 
know  what  the  majority  of  Frenchmen  think  individually 
upon  a  question  of  morality,  literature,  law  or  religion? 
Are  we  going  to  ask  them  all  one  after  another?  This 
would  be  a  tremendous  undertaking,  but  even  if  it  were 
accomplished,  the  result  would  still  be  open  to  suspicion. 
Some  would  not  have  understood  what  we  were  asking, 
others  would  have  been  incapable  of  replying,  others  still 
would  not  have  said  what  they  really  thought;  thieves 
would  not  have  admitted  that  they  considered  theft  a 
very  excusable  thing.  If  we  succeeded  in  eliminating  the 
mass  of  the  incapable  and  the  insincere,  whose  role  in  col- 
lective thought  is  very  active,  and  reached  the  chosen 
few  who  reason  and  clearly  state  their  ideas,  we  should 
then  have  as  many  opinions  as  individuals,  and  it  would 
be  impossible  to  disengage  any  prevailing  opinion.  A 
moral  or  legislative  principle  can  triumph  only  by  the  ad- 
herence of  many  who  would  not  be  capable  of  formulating 
it  and  who  do  not  even  understand  it  entirely.  One  phi- 
losopher has  never  been  known  to  say  exactly  the  same 
thing  as  another  philosopher,  nor  one  sociologist  as  an- 
other sociologist,  nor  one  political  theorist  as  another 
political  theorist. 

The  whole  of  the  individual  psychology,  the  sum  total 
of  personal  ideas,  the  complete  activity  of  human  thought, 
is  destined  to  remain  forever  unknown.  Perhaps  we  know 
only  a  very  trifling  part  of  what  the  small,  the  average, 
and  the  great  minds  have  produced.  A  great  deal  of 


§2]    INDIVIDUAL'S  RELATION  TO  SOCIETY    155 

intellectual  labor  which  might  have  merited  preservation 
has  disappeared.  But  such  preservation  is  not  materially 
possible.  The  privileged  few  can  express  what  they  think, 
can  make  their  speech  or  their  writings  understood,  and 
transmit  them  to  succeeding  generations,  but  the  majority 
of  philosophical  and  juridical  works  and  even  those  of 
practical  interest  go  unread  or  soon  sink  into  oblivion. 

What  is  thought  in  the  group,  in  the  nation,  or  in  hu- 
manity, does  not  constitute  social  thought.  The  whole 
intellectual  labor  of  human  beings  does  not  become  syn- 
thesized, nor  does  it  create  law,  religion  or  any  social 
phenomenon.  It  is  a  real  thing  which  cannot  be  perceived, 
a  sacred  thing  which  we  cannot  respect  since  we  cannot 
know  it.  On  the  contrary,  collective  thought  (that  of 
groups)  is  easy  to  observe;  it  is  a  convenient  object  of 
study,  thanks  to  its  relative  meagreness.  In  fact,  it  gov- 
erns the  world;  but  nothing  can  give  it  the  right  to  do  so 
or  compel  us  to  accord  it  our  respect  and  esteem.  It  is 
a  concubine  which  cannot  be  driven  from  the  conjugal 
abode. 

The  Durkheim  school  supposes  that  the  social  con- 
sciousness is  formed  by  mysterious  processes  in  a  political 
group  or  in  some  definite  region,  whenever  assemblies, 
crowds  or  writings  give  it  the  opportunity  to  reveal  itself. 
I  maintain,  on  the  other  hand,  that  every  event,  every 
institution  which  brings  many  brains  into  contact,  itself 
transforms  scattered  and  uncertain  fragments  of  indi- 
vidual psychology  into  collective  psychology,  so  that  be- 
fore the  communication  of  ideas  has  been  materially 
effected  there  exists  nothing  specifically  collective.  What 
will  be  the  general  spirit  of  a  particular  assembly?  That 
will  depend  upon  its  powers,  upon  the  task  it  has  to  ac- 
complish, upon  the  way  in  which  the  president  and  the 
board  will  be  nominated,  upon  the  duration  of  its  powers 
and  upon  the  one  who  will  first  address  the  house.  It 
becomes  a  collective  being  by  contact;  and  before  the 


156  SOCIAL  PSYCHOLOGY  [Cn.V 

first  contact,  it  does  not  exist.  When  individuals  come 
together,  even  in  small  numbers,  it  is  practically  impos- 
sible for  them  to  extricate  their  common  thoughts;  they 
can  only  create  a  special  psychological  being  which  will 
fulfil  more  or  less  successfully  its  function  of  reconciling 
different  ideals. 

(3)  Correction  of  Durkheim's  Theory  of  the  Function 
of  Punishment.  Durkheim's  fine  theory  of  the  present 
and  the  historical  functions  of  punishment  should  there- 
fore, in  my  opinion,  undergo  a  slight  correction.  For  him, 
crime  is  an  injury  to  a  preexisting  social  conscience;  it  is 
a  contradiction  of  general  beliefs,  and  the  group  rebels 
against  it.  The  guilty  party  is  punished  in  order  to 
affirm  that  the  act  committed  is  forever  abhorrent  in  the 
eyes  of  the  whole  group,  and  to  maintain  the  cohesion  of 
the  moral  ideal.  Without  the  sentence  and  the  punish- 
ment of  the  criminal,  no  citizen  would  know  whether  the 
violation  of  usages  and  rules  of  conduct  meets  with  the 
same  disapproval  among  other  citizens  as  it  does  in  his 
own  conscience.  These  statements  are  strikingly  true. 

But  one  ought,  it  seems  to  me,  to  go  further.  The 
public  sentence  and  the  public  punishment  of  the  guilty 
one  (the  pronouncement  of  the  penalty  and  its  applica- 
tion) are  not  confined  to  maintaining  the  social  conscience ; 
they  create  it,  modify  it,  and  add  or  retract  something 
from  it  at  each  session  of  court.  Public  disapproval 
has  followed,  not  preceded,  the  application  of  the  punish- 
ment; for  if  such  disapproval  had  been  and  was  being 
produced  through  itself  or  in  virtue  of  other  causes,  it 
might  "a  fortiori"  maintain  itself  without  the  cooperation 
of  public  punishment.  It  would  be  easy  to  show  that, 
especially  among  primitive  peoples,  but  also  even  ac- 
cording to  our  modern  conceptions,  the  punishment  is 
more  degrading  than  the  crime.  Even  if  a  person  be  un- 
questionably guilty  of  a  crime,  yet  if  he  escapes  the  penalty, 
he  escapes  dishonor  more  or  less,  because  the  collective 


§  2  ]     INDIVIDUAL'S  RELATION  TO  SOCIETY    157 

act  of  punishment  has  not  been  declared  with  respect  to 
him.  Even  today,  to  have  been  in  prison  for  robbery; 
to  have  been  prosecuted  for  robbery,  and  condemned  in 
absence,  but  to  have  escaped  in  time,  disguised  as  a 
stranger,  and  to  be  proscribed;  or  finally,  to  have  been 
convicted  of  robbery  but  to  have  died  before  the  sen- 
tence, —  these  constitute  socially  very  different  degrees  of 
disgrace.  These  are  for  us  no  more  than  survivals  of 
ideas  which  appear  in  the  old  laws  with  striking  dis- 
tinctness. 

If  we  try  to  imagine  the  first  act  of  social  repression, 
the  first  time  that  a  group  might  have  exercised  penal 
justice,  before  the  first  contact  of  individual  brains, 
there  would  have  existed  nothing  collective  in  their 
minds.  This  first  popular  tribunal  would  be  essentially 
irresolute,  open  to  every  fluctuation  of  sentiment,  and 
might  equally  as  well  acquit  the  criminal  as  tear  him  to 
pieces,  by  the  least  chance  incident.  After  this  first  de- 
cision, this  first  creation  of  collective  psychology,  the 
memory  of  this  former  phenomenon  would  remain  in  the 
minds  of  the  people  and  consequently  there  would  be  a 
tendency  to  repeat  it.  This  tendency  is  originally  of 
small  moment,  but  it  would  necessarily  assume  more 
stability  through  repetition.  Not  being  absolutely  ig- 
norant of  what  they  thought  in  common  formerly,  if  no 
obstacle  presents  itself,  the  citizens  will  reproduce  the 
same  thoughts  for  the  same  situations.  Collective  psy- 
chology establishes  itself  in  tradition  and  in  judicial  de- 
cision. With  the  development  of  civilization,  men  recog- 
nize other  means  of  communicating  their  thought  than 
that  of  meeting  and  talking;  they  send  messengers, 
preachers,  bards,  and  written  or  printed  matter,  where  a 
single  man  acts  the  part  of  spokesman  for  an  indeterminate 
portion  of  humanity  whose  opinion  he  represents.  From 
that  time,  collective  thought  appears  under  two  very 
different  types:  (a)  crowds,  where  men  in  greater  or  less 


158  SOCIAL  PSYCHOLOGY  [Cn.  V 

numbers  come  together,  all  concerned  with  the  same  ob- 
ject and  communicating  their  impressions  to  one  another 
directly;  (b)  opinion  or  tradition,  which  is  more  vague, 
more  tenacious,  composed  of  a  considerable  accumulation 
of  old  impressions  and  exercising  its  influence  on  every 
subject.  By  its  origin,  it  is  connected  with  the  psychology 
of  crowds  but  no  longer  resembles  it. 

(4)  Collective  and  Individual  Thought  Differentiated. 
What  is  the  nature  of  collective  thought?  In  what  does 
it  differ  from  individual  thought?  It  does  not  seem  to 
me  that  this  difference  is  in  its  content.  There  does  not 
appear  to  be  a  way  of  loving,  of  hating,  of  becoming  paci- 
fied or  of  flying  into  a  passion,  which  is  peculiar  to  collec- 
tive bodies.  Societies  have  the  sentiments  of  even  the 
most  complex  men;  they  are  notably  vain.  It  has  been 
affirmed  and  supported  with  examples,  that  they  have  a 
"mania  for  the  grand."  This  assertion  appears  warrant- 
able in  some  instances.  They  are  also  accused  of  harsh- 
ness, wickedness,  selfishness  and  cruelty,  but  there  is 
nothing  very  definite  to  justify  these  accusations. 

The  crowd,  it  is  said,  has  more  feeling  than  logic;  this 
is  not  quite  accurate.  The  crowd  reasons  as  an  indi- 
vidual reasons ;  it  makes  inductions,  deductions,  and  gen- 
eralizations. Great  orators  specialize  in  controlling  col- 
lective thought.  Demosthenes  and  Cicero  are  remark- 
able in  this  respect.  In  their  works  we  see  the  force  and 
flexibility  of  argumentation  which  is  necessary  to  draw 
the  masses.  The  latter  are  not  so  credulous  as  we  wish 
to  think  them.  Appeal  may  be  made  to  their  powers 
of  reflection  as  well  as  to  their  feelings.  Nevertheless, 
social  logic  can  dispense  with  accuracy  where  individual 
logic  could  not.  The  isolated  man  to  whom  a  course  of 
reasoning  is  submitted  remains  in  doubt  if  he  does  not 
find  the  reasoning  itself  the  means  of  justifying  his  be- 
lief. But  if  he  becomes  part  of  a  crowd,  he  is  less  partic- 
ular; although  he  may  not  understand  a  thing  very  well, 


§  2  ]    INDIVIDUAL'S  RELATION  TO  SOCIETY     159 

if  everybody  else  has  the  air  of  understanding  it,  he  is 
easily  convinced.  He  relies  upon  the  intelligence  of 
others.  It  may  thus  happen  that  nobody  in  the  crowd 
fully  understands  a  certain  question,  but  as  everyone 
supposes  his  neighbor  possesses  more  perspicacity  than 
himself,  the  approval  is  unanimous.  In  the  same  way  a 
collectivity  may  likewise  use  less  precise  terms;  in  our 
modern  societies  abstractions  and  stereotyped  phrases  are 
greatly  esteemed.  In  former  times,  proverbs  were  very 
popular,  and  in  much  more  primitive  civilizations,  words 
could  be  substantives,  adjectives,  or  verbs  without  re- 
gard to  grammatical  accuracy,  that  is,  words  possessed 
no  objective  precision  but  simply  condensed  a  certain 
number  of  impressions  experienced  in  common  under 
certain  circumstances. 

These  peculiarities  of  collective  logic  are  very  im- 
portant; it  is  very  probable  that  when  we  encounter 
them,  the  ideas  they  represent  have  had  their  origin 
in  groups  and  are  not  due  to  personal  initiative.  Thus 
it  was  possible  to  determine  the  social  character  of 
belief  in  magic  by  the  fact  that  the  theories  upon  which 
it  might  have  been  based  did  not  completely  justify  its 
contents,  and  also,  that  the  terms  used  were  very  broad 
as  well  as  very  uncertain  in  their  meaning.  Thus,  perhaps, 
Germanic  law  might  be  characterized  by  opposition  to 
Roman  law.  The  latter  is  individual  not  only  in  the 
essence  of  its  provisions  but  in  that  it  has  been  framed  by 
the  most  powerful  individual  logic.  Its  outlines  are  clear 
and  precise,  and  the  terms  easily  definable.  The  former 
is  a  collective  work,  vague  in  outline  and  abounding  in 
indefinable  terms  ("gesammte  Hand,"  "Gewere,"  etc.), 
the  meanings  of  which  have  never  been  clearly  grasped 
by  anyone,  no  matter  how  frequently  they  have  been 
applied  in  practice. 

But  if  this  psychology  is  somewhat  different  from  ours, 
we  can  understand  relatively  why  it  is  different,  and  the 


160  SOCIAL  PSYCHOLOGY  [CH.V 

personal  impressions  of  our  everyday  life  can  furnish 
abundant  data.  Of  course  in  any  particular  parliamen- 
tary assembly  all  of  the  members  do  not  experience  the 
same  impressions.  The  timid  are  ignorant  of  the  psy- 
chology of  the  leaders  and  vice  versa.  Everyone  in  the 
course  of  his  life  has  been  more  or  less  both;  and  if  we 
are  unable  to  reestablish  the  psychology  of  the  whole  of 
a  collective  phenomenon,  it  is,  on  the  other  hand,  very 
possible  to  discover  by  subjective  analysis  and  by  the 
combination  of  the  personal  impressions  of  others,  the 
general  texture  of  collective  psychology. 

This  is  all  the  more  so  since  subjective  study  alone  can 
instruct  us  as  to  the  nature  of  the  phenomenon.  Until 
we  do  so,  we  substitute  words  for  realities.  The  social 
fact  does  not  explain  social  psychology  any  more  than  the 
nerve  explains  sensation,  or  the  study  of  the  brain,  in- 
telligence. Besides,  subjective  observation  can  be  as 
certain,  as  much  under  control,  and  as  impersonal  as  ob- 
jective observation.  We  shall  examine  thoroughly  and 
methodically  the  prevailing  prejudices  in  this  matter. 
It  will  suffice  to  point  out  here  as  the  subjective  and  im- 
personal source  of  collective  psychology,  the  art  of  oratory 
as  a  whole,  and  the  greater  part  of  rhetoric.  Is  it  not 
reasonable  to  go  to  those  who  have  made  it  their  business 
to  control  the  masses  and  excite  in  them  thoughts  at  their 
convenience,  and  ask  for  information  upon  the  nature  of 
these  collective  beings  whom  they  have  been  obliged  per- 
force to  study  so  unremittingly? 

§  3.  Social  Beings  and  Collective  Thought.  No  science 
is  as  much  puzzled  as  psychology  to  define  precisely 
what  beings  are  the  objects  of  its  study.  Is  this  eulo- 
gizing it  or  casting  a  slur  upon  it?  The  more  completely 
it  frees  itself  from  the  concrete  and  commonplace,  in  order 
to  penetrate  the  abstract  or  complex,  the  more  difficult  it 
is  to  point  out  in  everyday  language  what  its  object  is, 
for  since  that  object  is  not  an  ordinary  thing,  an  effort  of 


§3]  COLLECTIVE  THOUGHT  161 

the  intelligence  is  required  to  determine  it.  Sociology  has 
assumed  the  task  of  establishing,  by  the  aid  of  observa- 
tions which  anybody  can  make,  facts  which  are  ordinarily 
not  grasped  by  common  sense.  Thus  it  has  been  possible 
from  all  time  to  show  that  men  in  groups  do  not  think  as 
do  men  separated;  but  of  what  great  importance  this 
phenomenon  is  in  all  branches  of  history  has  not  been 
realized.  And  so  perhaps  sociology  will  point  out  to  us 
what  are  the  collective  beings  that  are  capable  of  thinking 
collectively? 

1 :  The  Nation  as  a  Conscious  Organ  of  Collective  Thought. 
Let  us  say  immediately  that  this  is  a  very  great  mistake, 
for  no  sociological  school  will  teach  us  anything  upon  this 
matter.  For  the  majority  of  sociologists,  the  social  being 
par  excellence  is  the  nation.  We  are  told  that  laws, 
customs  and  traditions  are  the  expression  of  the  thought 
of  a  nation.  Such  is  the  gross  error,  the  misconception, 
the  untenable  assertion,  wherein  systems,  otherwise  very 
ingenious,  swerve  from  the  path  of  logic.  For  a  collective 
thought  can  only  be  formed  when  all  the  brains  are  brought 
into  contact  with  one  another.  Who  would  dare  to  main- 
tain that  all  the  people  of  a  nation  know  one  another  and 
act  in  common?  The  French  nation  is  given  as  a  type  of 
society  because  it  is  very  much  centralized  and  unified; 
what  ideas,  however,  are  there  in  common  between  the 
different  classes,  what  convictions  between  the  various 
political  parties,  what  interests  between  the  several  por- 
tions of  its  territory?  There  exists,  no  doubt,  a  certain 
reciprocal  sympathy  between  the  various  citizens,  a 
certain  pride  in  belonging  to  a  strongly  organized  group. 
The  nation  is  the  object  of  different  individual  sentiments 
which  vary  in  character  and  intensity  according  to  the 
individual  and  the  region;  it  is  not  the  director  of  our 
thoughts.  Our  nation  does  not  compel  us  to  love  it;  we 
love  it  of  ourselves,  perhaps  also  through  a  more  re- 
stricted collective  influence,  because  we  are  taught 


162  SOCIAL  PSYCHOLOGY  [Cn.V 

to  love  it,  and  the  people  around  us  communicate 
their  patriotism  to  us. 

2:  VARIETIES  OF  COLLECTIVE  BEINGS  IN  SOCIAL  OR- 
GANISMS. The  nation  is  not  a  thinking  collective  being. 
Can  this  character  be  attributed  to  more  limited  political 
associations,  —  tribes,  cities,  families,  professional  bodies, 
etc.?  This  would  almost  never  be  entirely  correct. 
Political  organisms  are  not  in  exact  juxtaposition  with  the 
psychological  beings  which  result  from  them ;  for  collective 
thought  derives  its  peculiar  character  from  the  authority 
which  the  thoughts  that  we  attribute  to  others  have  for 
us.  It  is  formed  by  the  exchange  of  ideas  and  can  only 
be  produced  in  the  minds  which  take  part  in  this  exchange. 
The  being  in  collective  thought  is  formed  by  the  totality 
of  the  individuals  who  are  in  effective  coummnication. 

This  communication  may  take  place  directly  between 
persons  who  come  together,  talk,  argue  and  are  able  to 
exchange  their  impressions  as  fa'st  as  they  are  produced. 

(a)  Crowds,  assemblies,  clubs  and  meetings,  summoned  or 
formed  accidentally,  are  the  first  type  of  being  in  collec- 
tive thought.    They  are  emotional,  changeable  and  easily 
excited  or  depressed.     The  impression  of  the  moment  is 
often  too  strong  for  past  impressions  not  to  be  effaced  by 
it.    These  beings  are  delimitable  and  measurable.     It  is 
easy  to  calculate  the  components  of  this  first  type  and  the 
functions   of   each   individual   in  relation   to   the  mass 
phenomenon.     But  these  ideas  are  transmitted  also  be- 
tween persons  who  do  not  know  and  never  meet  one  an- 
other, by  means  of  oral  or  written  tradition  and  usage. 

(b)  Opinion  is  a  second  type  of  the  thinking  collective 
being.     We  take  this  word  in  the  restricted  meaning  of 
"collective  belief  to  the  exclusion  of  every  personal  belief." 
We  know  that  a  great  number  of  persons  respect  certain 
traditions  and  certain  usages;  we  conform  to  them  and 
blame  those  who  violate  them.    We  thus  form  a  part  of 
opinion;  but  with  whom?     With  persons  whom  we  do 


§3]  COLLECTIVE  THOUGHT  163 

not  know,  who  live  neither  in  the  same  house,  town  or 
country,  whom  it  would  be  impossible  to  enumerate  and 
who  cannot  constitute  —  except  among  very  primitive 
peoples  —  anything  which  resembles  a  political  unity. 
There  are  "Opinions"  of  every  kind,  moral,  religious, 
literary  and  artistic,  of  fashion  and  of  prosperity.  These 
collective  beings  are  more  stable  than  crowds,  but  more 
vague,  more  amorphous,  and  more  difficult  to  appraise. 

Thus  in  every  social  organism  of  civilized  peoples,  and 
perhaps  even  among  primitive  peoples,  there  exists  a 
great  variety  of  social-psychological  beings,  or  if  it  is  pre- 
ferred, of  collective  thought.  In  a  city  of  the  Middle 
Ages,  we  see  regular  assemblies  of  the  people,  senates, 
more  limited  councils,  private  cabals  of  chiefs  who  plan 
revolts  or  "coups  d'etat,"  riots,  and  unions  of  merchants, 
of  business  men  and  of  people  who  seek  amusement. 
There  will  be  quite  as  many  different  "crowds"  who  will 
do  very  different  things,  and  no  one  of  them  will  be  con- 
fused with  the  city  as  a  whole.  The  second  type, 
"Opinion,"  is  not  less  well  represented  there.  The 
patrician  obeys  patrician  traditions  and  customs,  the 
plebeian,  plebeian  traditions  and  customs.  The  mer- 
chant does  not  praise  and  blame  the  same  acts  as 
does  the  soldier,  the  scholar  or  the  man  of  the  lower 
classes;  nor  does  he  live,  work  or  seek  amusement  in  the 
same  way.  He  finds  ideas  peculiar  to  this  sphere  in  many 
other  towns,  —  and  is  anxious  to  be  esteemed  wherever  he 
goes  as  well  as  in  his  own  country. 

Where  then  is  the  "social  consciousness"  of  the  city? 
It  is  nowhere.  We  find  in  it  an  infinity  of  small  "col- 
lective consciousnesses";  and  one  may  ordain  what  the 
other  prohibits.  An  individual  caught  in  a  crowd  may  be 
drawn  into  taking  part  in  the  lynching  of  a  criminal,  and 
the  next  day  find  himself  condemned  by  public  opinion 
for  having  done  it.  The  most  primitive  peoples,  like 
ourselves,  obey  different  collective  forces  according  as 


164  SOCIAL  PSYCHOLOGY  [Cn.V 

they  were  grouped  in  more  or  less  dense  crowds,  united  in 
families,  or  isolated.  Likewise,  we  often  see  persons 
break  with  their  traditions  in  a  moment  of  revolt,  but 
soon  regret  it  and  return  to  their  old  habits.  They  some- 
times follow  the  direction  of  the  crowd,  sometimes  that 
of  opinion. 

Political  organisms  bring  about  assemblies  of  individ- 
uals and  currents  of  opinion.  They  give  collective  thought 
the  opportunity  to  develop.  The  phenomenon  should  be 
studied  in  the  exchange  of  ideas  and  the  material  processes 
which  have  governed  this  exchange. 

§  4.  The  Past  and  the  Future  of  Individual  and  Collective 
Thought.  Moral  and  physical  labor,  institutions,  laws, 
literature,  philosophy,  religion,  works  of  art,  material 
construction,  —  all  reveal  human  thought  to  us,  but  what 
kind  of  thought?  Are  we  indebted  for  this  thought  to 
individual  genius,  to  currents  of  opinion,  or  to  the  in- 
fluence of  community  life  ?  This  is  evidently  an  important 
problem  in  history.  We  shall  regard  antiquity  in  en- 
tirely different  lights  according  as  we  consider  the  knowl- 
edge of  the  beautiful,  the  predominating  influence  among 
the  Greek  people  as  a  whole,  or  as  we  attribute  it  to  only 
a  few  great  architects  and  sculptors.  This  is  a  question 
which  the  historian  cannot  and,  in  fact,  does  not  evade. 
According  to  his  temperament  or  his  governing  ideas,  he 
fashions  history  from  an  individual  or  from  a  social 
standpoint,  without  pointing  out,  or  doing  so  very  briefly, 
the  reasons  of  his  method. 

1:  PROPORTION  OF  INDIVIDUAL  AND  COLLECTIVE 
THOUGHT.  The  process  just  mentioned  is  clearly  an 
arbitrary  one.  It  is  almost  entirely  so  when  an  attempt 
is  made  to  establish  once  for  all  the  r61e  of  personal  ini- 
tiative and  of  the  influence  of  environment,  by  a  few 
examples  taken  at  random  from  the  present  and  the  past. 
Yet  we  try  to  qualify,  "a  priori,"  every  branch  of  human 
activity.  We  say  that  morality,  religion,  law,  etc.,  are 


§  4  ]     INDIVIDUAL,  COLLECTIVE  THOUGHT    165 

creations  of  the  social  mind,  and  the  exact  sciences,  in- 
dividual creations.  This  process  is  equally  dangerous,  for 
there  is  scarcely  a  science,  even  an  objective  one,  which  is 
not  influenced  by  opinion  to  institute  research  in  a  certain 
direction  rather  than  in  some  other,  and  personal  effort  is 
always  necessary  to  produce  works  which  are  even  the 
most  completely  in  harmony  with  public  ideas ;  as  for  in- 
stance, a  serial  novel,  a  declaration  of  political  faith  to 
one's  electors,  a  ministerial  program,  or  a  political  ad- 
dress. According  to  the  age,  a  work  of  the  same  nature 
will  be  more  social  or  more  individual.  In  other  words, 
the  collective  mind  does  not  seem  to  have  acted  the  same 
in  all  civilizations,  and  in  the  one  in  which  we  live,  it  is 
easy  to  distinguish  liberal  and  autocratic  periods,  also 
forms  of  social  pressure  which  disappear  and  others 
which  arise.  Grammarians  are  less  irritating  than  for- 
merly, experts  in  hygiene  more  so;  or,  to  be  more  exact, 
the  society  which  taxed  the  patience  of  the  preceding 
generation  with  more  or  less  justifiable  rules  of  orthog- 
raphy has  become  more  reasonable  in  this  respect;  but 
it  never  was  so  trivially  annoying  with  respect  to  eating, 
drinking,  sleeping,  heating  and  lighting. 

Thus  we  shall  have  to  recognize  that  collective  thought 
varies  with  the  time  and  that  it  should  be  studied  in  ac- 
tion, dynamically,  according  to  the  expression  of  current 
terminology.  But  the  dynamists  (those  who  study 
beings  in  their  movements  and  whom  we  may  term  more 
simply  historians)  are  still  divided  upon  a  question  of 
method.  Some  believe  in  the  possibility  of  making  a 
sketch  of  the  relationship  between  human  thought  and 
society,  of  pointing  out  the  main  lines  of  the  evolution 
of  one  in  relation  to  the  other,  either  through  a  con- 
tinual emancpation  of  the  individual  or  by  a  more  and 
more  distinctly  marked  tendency  to  solidarity. 

2:  THEORIES  OF  THE  REGULAR  AND  STEADY  DEVEL- 
OPMENT OF  INDIVIDUAL  THOUGHT  WITH  ADVANCING  Civ- 


166  SOCIAL  PSYCHOLOGY  [Cn.V 

ILIZATION.  According  to  certain  theories,  history  would 
show  us  how  the  purely  social  being  which  composed 
primitive  civilizations  has  acquired  by  degrees  a  personal 
intelligence,  an  originality  of  ideas  which  permits  him  to 
be  distinguished  from  those  who  are  called  his  likes  but 
are  so  no  longer  at  the  present  time  in  the  strictly  literal 
meaning  of  the  word. 

(A)  First  Theory:  Decreasing  resemblance  between  in- 
dividuals with  advancing  civilization;  Primitive  law  solely 
penal.  Let  us  state  and  examine  one  of  the  most  wide- 
spread of  these  theories.  According  to  it,  man  has  ac- 
quired, in  the  course  of  history,  the  power  of  thinking 
entirely  alone,  of  reasoning  objectively,  of  being  different 
from  his  neighbor,  and  he  has  always  developed  in  this 
direction  because  the  social  organization  likewise  has  fol- 
lowed a  unity  of  direction.  Primitive  groups  are  essen- 
tially simple  and  homogeneous;  civilized  ones,  more  and 
more  complex  and  heterogeneous.  Among  savage  peoples 
or  those  approaching  the  barbarian  stage,  individuals  re- 
semble one  another  in  physique  and  in  mentality.  Natu- 
rally —  physiologically,  we  may  say  —  they  ought  to  think 
the  same  thing,  have  the  same  habits,  the  same  ways  of 
living,  the  same  methods  of  work.  All  those  who  live 
together  resemble  one  another,  and  like  to  live  together 
because  they  do  resemble  one  another.  Law  is  then  the 
obligation  not  to  disturb  this  harmony,  and  for  that 
reason,  to  do  as  others  do  upon  every  occasion.  Whoever 
wishes  to  escape  from  the  general  uniformity,  arouses  the 
consciousness  of  the  group  which  reacts  with  violence 
and  strikes  the  culprit.  Every  primitive  law  is  solely 
penal,  and  every  penal  law  is,  in  its  origin,  the  re- 
pression of  injuries  to  the  social  consciousness;  and 
this  is  why  it  sometimes  punishes  infringements  of 
certain  rites  that  are  very  inoffensive  crimes  to  every- 
body, and  again  ignores  crimes  that  are  extremely 
dangerous  to  individuals. 


§4]    INDIVIDUAL,  COLLECTIVE  THOUGHT     167 

Within  each  group,  the  individuals  are  all  much  alike; 
but  each  of  these  small  societies  may  differ  from  its  neigh- 
bors. Events  of  a  varied  nature  have  compelled  these 
first  social  beings  to  inhabit  the  same  territory,  then  to 
become  merged  politically,  juridically  and  physiologically. 
In  this  second  degree  of  civilization,  fellow  citizens  no 
longer  resemble  one  another  so  completely;  traditions 
and  customs  are  no  longer  so  energetically  affirmed  by 
the  collective  body.  The  old  solidarity  has  diminished 
and  the  larger,  denser  and  more  heterogeneous  the  group 
becomes,  the  less  vigorous  the  old  social  influence.  Now 
civilization  nearly  always  tends  towards  the  formation  of 
more  and  more  populous  organisms ;  it  brings  into  busi- 
ness or  family  relations,  people  who  are  very  unlike,  and 
creates  complicated  economic  and  administrative  machin- 
ery wherein  labor  becomes  more  and  more  divided.  Pur- 
suing different  occupations;  deriving  different  ideas  and 
traditions  from  their  origin  and  physiology,  fellow  citizens 
no  longer  have  so  limited  a  social  consciousness  and  indi- 
vidual thought  is  liberated.  Thus  the  development  of 
civilization  tends,  in  a  certain  sense,  to  the  emancipation 
of  the  individual  and  the  destruction  of  the  social  bond. 

But  men  do  not  seek  one  another  only  because  they 
are  alike ;  they  seek  one  another  still  more  when  they  are 
unlike,  if,  thanks  to  these  dissimilarities,  they  are  comple- 
ments of  one  another,  if  the  useful  or  desired  object  can- 
not be  accomplished  by  one  person  alone,  or  if  it  is  the 
product  of  two  specialists.  Such  is  the  case  as  soon  as 
division  of  labor  appears  in  the  various  economic,  indus- 
trial, political  and  intellectual  domains.  Men  are  then 
connected  by  a  premeditated  organic  solidarity,  where, 
although  more  intellectually  isolated,  they  are,  neverthe- 
less, more  and  more  dependent  upon  the  social  body,  for 
they  are  not  sufficient  unto  themselves  and  can  only  per- 
form just  that  function  to  which  they  are  adapted.  Fel- 
low citizens  are  united  by  an  underlying  social  bond. 


168  SOCIAL  PSYCHOLOGY  [  CH.  V 

Correction  of  the  Above  Theory:  This  very  fine 
thesis  of  Durkheim  is  worthy  of  acceptance  in  its  large 
outlines.  For  the  historian  of  the  law,  it  is  evidently 
only  a  "schema"  which  cannot  exempt  him  from  a  check 
or  control  nor  render  him  less  attentive  in  the  observa- 
tion of  facts.  But  it  is  valuable,  for  it  is  of  a  nature  to 
make  certain  juridical  facts  of  the  past  understood  with 
a  greater  degree  of  philosophic  insight.  Nevertheless,  we 
cannot  accept  it  even  to  this  extent  without  modifying 
it  somewhat. 

The  fact  that  in  primitive  groups  individuals  resemble 
one  another  psychologically  and  physically  seems  a  cor- 
rect observation.  But  since,  by  virtue  of  their  identity  of 
physical  conformation,  they  possessed  the  same  tenden- 
cies and  the  same  good  and  bad  qualities,  and  since  they 
were  impelled  by  inclination,  by  their  own  nature,  to 
obey  the  social  consciousness,  it  seems  that  crime,  injury 
to  that  consciousness,  ought  to  have  been  unknown  or 
nearly  so.  There  was  no  reason  for  the  development  of  a 
completely  useless  penal  law. 

Crime,  or  according  to  the  definition  which  has  been 
given  it,  injury  to  the  social  consciousness,  presupposes  a 
certain  originality  of  mind  on  the  part  of  the  criminal, 
who  is  therefore  a  psychological  individual.  Now,  we  are 
informed  that  this  is  only  born  later  by  the  division  of 
labor,  when  the  penal  law,  the  sole  pivot  of  primitive  so- 
ciety, begins  to  lose  its  social  importance.  There  is  here 
an  evident  contradiction.  In  order  for  the  penal  law  to 
have  been  able  to  develop,  there  was  necessary  at  least  a 
germ  of  individual  thought,  which  is  opposed  to  the  com- 
mon mind  and  causes  it  to  react.  Accordingly,  the  two 
psychological  modes  must  have  always  coexisted  what- 
ever may  have  been  their  respective  importance  in  the 
different  periods  of  history. 

In  fact,  let  us  suppose  a  clan  where  all  men  are  abso- 
lutely identical;  that  does  not  prove  that  we  may  dis- 


§4]     INDIVIDUAL,  COLLECTIVE  THOUGHT    169 

cover  in  their  collective  thought  the  intellectual  and  moral 
elements  which  are  proper  to  each.  Still  less  does  it 
signify  that  every  individual  always  works  in  the  general 
interest  and  discloses  to  the  whole  group  the  sum  total  of 
his  thought  and  action.  It  is  always  possible  that  in  as- 
semblies certain  mental  tendencies  are  exaggerated  by  the 
communication  and  others  remain  concealed.  Thus  there 
are  formed  currents  of  opinions  which  may  be  termed 
"social  consciousness,"  that  are  more  or  less  different 
from  the  real  tendencies  which  individuals  obey  when  act- 
ing in  their  own  interests.  Thus  is  explained  the  forma- 
tion of  principles  which  are  openly  and  traditionally  af- 
firmed by  all.  Thus  is  explained  the  fact  that  in  spite  of 
general  adherence  to  the  same  principles,  we  all  bear  in 
us  the  germ  of  sin,  of  disobedience  to  the  system  of  mo- 
rality which  we  have  helped  to  create  and  which  is  a  small 
part  of  our  nature,  but  which  never  completely  satisfies 
the  aspirations  of  the  most  submissive  or  the  most  perfect 
man. 

Individual  tendencies  are  manifested,  moreover,  among 
the  most  primitive  peoples  in  one  of  the  most  important 
elements  of  penal  law,  namely,  the  taking  of  the  law  into 
one's  own  hands,  or  private  vengeance.  Crime  is  not 
then  an  injury  to  the  "common  consciousness"  but  to  in- 
dividual interests;  punishment  no  longer  has  as  its  social 
function  to  maintain  the  general  disapproval,  but  to  give 
satisfaction,  to  appease,  to  calm  the  victim  or  his  rela- 
tives. The  mistake  was  formerly  made  of  supposing  that 
all  penal  law  was  derived  from  this  source  alone,  of  con- 
sidering, for  example,  that  the  treatment  of  sacrilege  was 
always  a  regulation  of  divine  vengeance.  It  is  very  cer- 
tain that  crime  often  derives  its  specific  character  from 
the  fact  that  it  contradicts  the  prevailing  opinion ;  a  great 
many  political  and  religious  crimes  are  instances  of  this. 
But  the  Durkheim  school  does  not  labor  under  a  less  seri- 
ous misapprehension  in  trying  to  trace  private  vengeance 


170  SOCIAL  PSYCHOLOGY  [  CH.  V 

back  to  a  process  of  collective  reaction,  under  the  pretext 
that  the  group  sometimes  intervenes  in  order  to  protect 
or  regulate  such  vengeance. 

In  reality,  even  the  oldest  penal  law  is  not  homogene- 
ous. No  one  can  understand  its  history  and  development 
who  does  not  take  into  account  at  the  same  time  (a)  the . 
individual  sentiment  of  vengeance,  (b)  the  collective  sen- 
timent of  reaction  against  injuries  to  common  beliefs, 
and,  later,  (c)  the  political  idea  with  respect  to  civil  and 
religious  authority.  From  these  three  elements  the  most 
varied  combinations  have  been  formed.  There  are  civili- 
zations in  which  political  crime  plays  a  preponderant  part, 
others  where  its  importance  is  only  secondary,  and  others, 
still,  where  it  does  not  exist  at  all.  There  are  peoples 
among  whom  the  collective  consciousness  is  not  powerful 
enough  to  convert  into  a  misdemeanor  any  disregard  of 
custom  and  belief.  With  them,  private  vengeance,  more 
or  less  regulated,  operates  solely  to  maintain  public  or- 
der. Such  is  the  case  in  the  pre-Islamitic  Arab  law.  It  is 
well,  in  regard  to  this  point,  to  read  the  inquiry  upon  the 
origin  of  the  penal  law  made,  through  the  initiative  of 
Mommsen,  by  a  dozen  of  the  most  authoritative  special- 
ists. From  this,  one  will  certainly  gain  the  impression 
that  the  exclusive  theory  of  the  ancients  would  be  more 
easily  adapted  to  facts  than  Durkheim's  exclusive  theory. 

But  it  would  be  a  mistake  to  accept  either.  The  inde- 
pendence of  each  of  the  ideas  which  has  directed  the  des- 
tinies of  the  penal  law  must  be  carefully  preserved.  These 
ideas  (without  which  the  penal  process  cannot  be  under- 
stood) are,  as  has  been  indicated,  (a)  the  anger  of  the 
victim,  (b)  popular  indignation,  and  (c)  the  will  of  the 
authority  which  interposes  its  intervention.  Let  us  take 
a  rather  ordinary  juridical  type  where  the  three  psycho- 
logical penal  forces  are  combined  without  being  confused. 
A  crime  has  been  committed;  a  man  has  been  killed.  The 
nearest  relatives  are  going  to  take  the  initiative  in  the 


§  4  ]    INDIVIDUAL,  COLLECTIVE  THOUGHT     171 

prosecution.  If  they  make  no  claim,  the  collective  body 
will  not  act  in  their  place,  a  proof  that  the  deed  in  itself 
is  a  matter  of  indifference  to  the  collectivity  and  has  not 
excited  its  indignation.  Nevertheless,  opinion  is  not  en- 
tirely without  an  influence  in  starting  the  movement  for 
prosecution.  Anyone  who  would  permit  the  murderer  of 
a  relative  to  go  unpunished  would  be  disgraced  and  his 
cowardice  might  cause  him  juridical  difficulties.  But  if 
this  is  so,  the  lack  of  personal  courage  and  initiative  at 
such  a  time  is  blamed  even  by  the  collectivity  which  likes 
to  be  forced  into  action,  and  sometimes  even  treated  with 
violence.  It  has  not  changed  much  since  olden  times. 

The  family  of  the  victim  proceeds  to  prosecute  the 
murderer.  At  a  more  primitive  epoch,  they  would  have 
killed  him  without  formality  and  the  feud  between  the 
two  families  would  have  continued  indefinitely.  But  we 
are  already  in  a  more  civilized  period.  The  prosecutors 
will  act  with  the  concurrence  of  the  public  powers  and  of 
the  collective  force ;  thus  they  will  be  more  certain  of  vic- 
tory and,  having  inflicted  the  punishment,  they  will  be 
protected  against  the  anger  of  the  other  family.  And 
above  all,  if  they  acted  without  asking  the  aid  of  the  peo- 
ple, their  opponents  might  be  more  skilful  than  they,  and 
complain  after  the  revenge  that  they  had  been  attacked 
first,  thus  gaining  the  public  sympathy;  accordingly  the 
innocent  would  run  a  great  risk  of  paying  the  penalty  in- 
stead of  the  guilty.  It  is,  therefore,  the  moment  to  awaken 
popular  indignation,  to  let  loose  the  collective  hue  and 
cry.  The  injured  family  will  effect  this  by  the  only  pos- 
sible processes  employed  from  all  time  to  excite  crowds, 
namely,  by  cries,  tears,  violent  and  skilfully-enacted  dra- 
matic scenes,  and  especially  by  a  relentless  accusation 
which  derives  its  value  not  from  rational  proof  and  com- 
plicated deductions,  but  from  the  vigor  with  which  it  is 
affirmed.  And  if  the  family  of  the  victim  succeeds  in  in- 
teresting collective  thought  in  its  affair  the  accused  has 


172  SOCIAL  PSYCHOLOGY  [Ca.V 

no  longer  against  him  one  or  more  individuals,  but  a  veri- 
table mob  convinced  of  his  guilt  and  ready  for  a  lynching. 
To  escape  such  fury,  it  is  not  enough  to  deny  the  charge, 
or  plead  excuses;  more  energetic  means  are  necessary. 
Anyone  who  would  confine  himself  to  a  purely  passive 
and  defensive  role  would  run  a  great  risk  of  losing  his  life 
before  he  had  explained  his  case.  He  must  take  an  active 
part,  cry  out  against  slander  and  invoke  gods  and  men 
with  more  or  less  tragic  gestures.  He  must  prove  his  in- 
nocence. The  proof  devolves  upon  the  accused,  the  de- 
fendant. This  proof  will  be  dramatic,  naive,  and  of  a 
nature  to  impress  the  crowd.  Sometimes  the  defendant 
will  invent  it  himself,  sometimes  the  religious  or  civil  au- 
thorities will  indicate  by  what  means  the  innocent  can  be 
distinguished  from  the  guilty,  and  to  what  tests  the  ac- 
cused must  be  submitted. 

This  drama,  which  constitutes  the  primitive  criminal 
process,  can  only  be  conceived  as  a  struggle  between  two 
subtle,  active  and  crafty  personal  intelligences  endeavor- 
ing to  launch  against  one  another  the  half-blind,  half-un- 
conscious force  of  popular  indignation. 

Thus  the  individual  mind  existed  at  every  epoch  in 
conflict  or  in  combination  with  the  collective  mind.  Oth- 
erwise, the  penal  law,  which  has  been  rightly  chosen  as  a 
type  of  social  constraint,  would  be  inexplicable.  Division 
of  labor  has  been,  no  doubt,  of  great  psychological  impor- 
tance, but  it  has  not  created  the  individual  nor  destroyed 
the  passion  of  crowds  and  of  opinion.  There  has  been  no 
substitution  of  a  new  type  of  thought  for  the  old  one, 
but  the  coexistence  through  ages  of  two  intellectual  forces 
which  have  acted  differently  according  to  the  period,  and 
the  historical  relations  of  which  cannot  be  comprised  in  a 
formula. 

(B)  Second  Theory:  Gradual  transformation  of  pur- 
posiveness  with  advancing  civilization.  Resolutions  caused 
by  individual  intellectual  progress.  A  general  sketch 


§  4  ]     INDIVIDUAL,  COLLECTIVE  THOUGHT     173 

of  the  transformation  of  the  collective  mind  by  civili- 
zation has  been  drawn  from  a  somewhat  different 
point  of  view  and  is  worth  our  attention.  Accord- 
ing to  this  thesis,  primitive  man  is  a  creature  of 
instinct  and  primitive  society,  an  instinctive  institu- 
tion. Originally,  man,  like  the  ant,  the  bee  or  the 
beaver,  is  ready  to  sacrifice  himself  and  others  without 
reflection  or  intelligence,  to  society  and  the  destiny 
cf  the  species.  He  does  not  ask  himself  what  pur- 
pose may  be  served  by  the  general  prosperity  other  than 
to  render  each  individual  stronger  and  happier.  But  man 
becomes  transformed  by  degrees  from  an  instinctive  into 
an  intelligent  being.  He  reasons  about  the  object  of  his 
actions,  his  laws  and  his  customs.  Society  is  no  longer 
the  end  in  which  the  individual  should  become  absorbed, 
but  its  "raison  d'etre"  is  in  the  happiness  which  it  ought 
to  diffuse,  and  the  unhappiness  which  it  ought  to  prevent; 
and  since  the  physical  human  being  is  the  only  one  who 
can  be  happy  or  suffer,  he  becomes  the  rational  aim  of 
civilized  organizations.  Social  or  individual  psychology 
becomes  transformed  in  its  purposiveness.  Thus  collect- 
ive forms  with  individual  aims  should  replace  collective 
forms  with  aims  which  are  unconsciously  social.  Modern 
states  wrest  the  individual  from  the  tyranny  of  blinder 
and  more  oppressive  groups.  Based  upon  an  intelligent 
altruism,  they  allow  the  most  diverse  liberties  to  balance 
one  another.  Likewise  it  is  not  necessary  for  the  State  to 
be  set  in  opposition  to  individuals.  The  powers  of  the 
State  are  the  guaranties  of  our  personal  development. 

Civilized  states  are  established  by  a  series  cf  revolu- 
tions. Every  revolution  is  an  insurrection  against  thought- 
lessly accepted  tradition,  and  its  object  is  a  transfer  of 
authority,  the  substitution  of  a  premeditated  social  bond 
for  that  of  instinct  and  tradition.  The  cause  of  these 
revolutions  is  to  be  found  in  the  intellectual  progress  of 
the  individual,  in  the  continually  increasing  complexity  of 


174  SOCIAL  PSYCHOLOGY  [Cfc.V 

his  conceptions.  Progress  is  always  effected  therefore  in 
the  direction  of  more  complete  personal  effort. 

Criticism  of  this  View:  This  theory  presents  a  cer- 
tain appearance  of  truth.  Every  epoch  has  its  authori- 
tarian traditionalists,  who  do  not  admit  any  discussion  of 
their  principles,  and  its  innovators,  who  criticize,  argue, 
and  propose  systems  which  are  sometimes  very  ingenious. 
The  former  represent  the  past;  the  latter,  the  future. 
Unfortunately,  what  complicates  matters  is  that  the  in- 
novators are  not  always  men  of  remarkable  intelligence, 
nor  the  traditionalists,  men  of  pure  instinct.  The  latter 
reason  about  their  lack  of  reasoning.  "  The  reason  of  man 
is  too  feeble  to  be  permitted  to  make  faulty  and  capri- 
cious innovations."  "Our  fathers  knew  what  they  were 
doing.  Let  us  abide  by  their  experience."  These  are 
men  whose  minds  work  inductively;  though  not  always 
very  well  informed,  they  are  particularly  fond  of  the  ex- 
perimental method.  Modern  science  without  approving 
their  conclusion  cannot  condemn  their  process.  The  re- 
formers nearly  always  have  a  logic  which  is  more  ingen- 
ious than  critical.  Their  familiar  method  is  deduction. 
They  seldom  investigate  whether  reality  approves  or  re- 
futes their  statements.  In  former  times  they  were  purely 
deductive  reasoners  and  dangerous  ones  at  that.  Nowa- 
days, they  place  somewhat  more  value  upon  observation 
but  dialectics  remains  the  chosen  weapon  even  of  those 
who  do  not  acknowledge  it.  Moreover,  it  may  be  asked 
whether  it  is  really  possible,  whether  it  will  ever  be 
possible,  to  base  a  reform  solely  upon  observations  and 
inductions. 

So  much  for  creative  reformers.  As  for  their  dis- 
ciples, they  are  content  to  repeat  a  course  of  argument 
which  they  do  not  always  understand  and  which  is  often 
reproduced  by  them  so  defectively  that  the  least  exercise 
of  the  critical  faculty  would  disclose  its  gaps.  Every 
revolution  springs  from  an  argument,  from  the  need  of 


§  4  ]     INDIVIDUAL,  COLLECTIVE  THOUGHT     175 

reasoning,  but  not  from  any  progress  in  the  art  of  reflec- 
tion. Civilization  does  not  necessarily  move  towards  a 
more  effective  participation  of  the  individual  intelligence 
in  social  organization,  and  toward  a  diminution  of  the 
spirit  of  contagion  and  suggestion.  There  is,  in  this  re- 
spect, no  straight  line  in  history,  but  a  series  of  phenom- 
ena which  must  be  appraised  separately. 

Moreover,  while  we  admit  that  a  revolution  always  ex- 
presses an  intellectual  gain,  it  is  the  intellectual  gain  of 
one  or  more  of  the  rebels,  not  of  the  whole  nation.  If  in  a 
band  which  passively  obeys  a  chieftain,  a  few  revolt  and 
take  a  personal  initiative,  the  rebellious  ones  acquire  by 
the  act  of  rebellion  a  higher  intellectual  status;  but  the 
band  as  a  whole  will  be  governed  perhaps,  with  less  intel- 
ligence than  before,  and  an  act  of  reflection  will  in  prac- 
tice be  equivalent  to  a  piece  of  veritable  stupidity. 

Finally,  if  social  relations  have,  in  civilized  countries, 
passed  from  instinct  to  reflection,  it  is  very  astonishing 
that  after  so  great  a  number  of  revolutions  we  are  still  so 
little  advanced,  and  having  reflected  so  much,  we  are  still 
so  instinctive.  When  serfs  and  villeins,  who  have  always 
obeyed  their  masters  by  instinct,  have  become  capable  of 
emancipating  themselves,  have  they  not  reflected  deeply 
upon  the  injustice  of  their  exploitation  and  the  more  or 
less  complete  equality  of  men?  Have  they  not  decided 
to  break  with  their  traditions  completely  in  order  to  es- 
tablish a  society  based  upon  rational  principles?  How 
has  the  intelligent  city,  the  agent  of  freedom,  become  the 
instinctive  and  tyrannical  city  which  the  governments  — 
according  to  those  whom  we  are  criticizing  —  were  right  in 
destroying  in  order  to  permit  the  individual  to  find  him- 
self again?  How  does  it  happen  that,  after  centuries  of 
life  in  commonwealths,  after  a  series  of  revolutions  each 
of  which  ought  to  represent  to  us  a  destruction  of  instinc- 
tive tradition  and  an  awakening  of  reason,  tradition  has 
not  been  dead  for  ages  and  reason  awakened  long  ago? 


176  SOCIAL  PSYCHOLOGY  [Cn.V 

Certainly  the  one  must  be  very  tenacious  of  life  and 
the  other  sunk  in  a  most  profound  sleep. 

3:  COEXISTENCE  OF  INDIVIDUAL  AND  COLLECTIVE 
THOUGHT.  But  one  explanation  can  be  given.  The  tra- 
dition of  instinct,  otherwise  called  Opinion,  is  a  form  of 
thinking  which  exists  now  as  it  has  always  existed.  When 
conscious  and  individual  reason  attacks  a  collective  tra- 
dition and  destroys  it,  its  course  of  argument  and  its  af- 
firmations are,  by  penetrating  into  the  masses,  trans- 
formed into  unconscious,  unreflecting  Opinion  which  only 
a  new  personal  effort  can,  in  its  turn,  destroy  in  order  to 
substitute  for  it  a  new  collective  thought  of  the  same  na- 
ture as  that  which  preceded  it.  We  must  not,  therefore, 
arrange  in  series  the  phenomena  which  are  coexistent  in 
history.  The  collective  mind  under  diverse  forms  is  dis- 
covered to  be  today  almost  what  it  was  in  earlier  times. 
It  is  not  necessary  to  see  in  history  a  succession  of  psy- 
chological forms  which  are  more  and  more  collective  or 
more  and  more  individual,  but  a  series  of  the  most  di- 
verse combinations  of  intellectual  elements  that  are  al- 
most identical  in  every  age. 

There  exist,  no  doubt,  at  every  instant  multiple  forces 
which  tend  to  diminish  the  pressure  exercised  by  society 
upon  the  brain;  but  there  are  others  which  have  the  op- 
posite tendency.  One  must  know  how  to  detect  both  if 
he  wishes  to  avoid  making  a  poor  history  or  rash  predic- 
tions. Thus,  if  certain  tendencies  of  the  present  are  taken 
into  account,  we  might  admit  with  M.  Draghicesco  that 
we  are  moving  toward  a  complete  unification  of  human- 
ity. Peoples  penetrate  each  other  more  and  more,  inter- 
national barriers  will  perhaps  fall  in  a  longer  or  shorter 
time,  distance  becomes  easier  to  encompass  from  day  to 
day,  classes  are  becoming  equalized  as  are  fortunes,  man- 
ners and  education.  The  psychological  consequence  of 
this  is  that  individuality  is  disappearing,  or  rather  that 
after  having  absorbed  all  individual  effort,  collective 


§  4  ]     INDIVIDUAL,  COLLECTIVE  THOUGHT     177 

thought  will  be  common  to  all,  in  such  a  way  that  the 
subjective,  the  objective  and  the  social  points  of  view  will 
become  confused.  The  truth  will  be  accessible  by  direct 
methods.  Men  being  all  equally  wise  and  clear-sighted, 
the  best  process  to  discover  a  scientific  law  will  be  to 
make  an  appeal  to  a  universal  vote,  which  will  necessarily 
contain  the  greater  part  of  objective  truth  since  it  will 
be  the  expression  of  a  greater  number  of  observations. 
Thus  universal  suffrage  will  create  genius  by  pointing 
out  the  individual  in  whom  it  wishes  such  genius  to  be- 
come incarnated;  it  will  assign  to  each  his  role  and  his 
value  with  all  the  greater  ease,  since  each  will  be,  in  this 
respect,  the  equal  of  his  neighbor. 

Is  humanity  really  destined  to  a  future  so  fantastically 
monotonous?  There  are  good  reasons  to  hope  not.  How- 
ever, if  this  future  appears  to  us  fantastic,  it  is  not  so;  if 
we  consider  that  certain  social  forces  are  at  work,  and  if 
we  suppose  that  they  alone  will  sweep  the  world  along, 
the  ideal  of  M.  Draghicesco  ought  logically  to  be  real- 
ized. That  is  all  the  more  certain  since  it  is  already  al- 
most realized.  For  the  Utopia  of  social  integration,  like 
all  Utopias,  is  not  a  work  of  the  imagination  but  the  gen- 
eralization and  the  exaggeration  of  certain  states  of  the 
existing  society.  Worldly  and  cosmopolitan  aristocracies 
do  in  themselves  what  the  socialists  would  like  to  see 
done  for  humanity.  They  transform  into  collective 
thought  their  judgment  upon  men  and  things.  Moral, 
scientific  or  aesthetic  principles  are  not  considered  as 
capable  of  having  any  intrinsic  value;  they  are  accepted 
or  not  accepted.  Men  of  genius  and  talent  are  chosen 
and  personal  worth  distributed,  not  by  ballot,  but  by 
currents  of  impersonal  and  unreflected  opinion. 

But  this  class  is  submitted  to  the  most  energetic  social- 
izing forces.  Even  down  to  the  smallest  details  of  his 
life,  the  individual  is  in  perpetual  contact  with  Opinion 
and  with  an  essentially  wide-spread  Opinion.  This  class 


178  SOCIAL  PSYCHOLOGY  [Ce.V 

dwells  on  the  fast  liners  and  the  Orient-Express,  in  an  en- 
vironment always  changing.  Now,  people  who  know  each 
other  but  slightly  can  only  treat  one  another  as  equals. 
Psychological  socialism  and  the  principles  of  human  fungi- 
bility  ought  to  find  a  favorable  soil  in  such  a  company. 

But  aside  from  these  socializing  forces  of  the  modern 
age,  there  are  very  vigorous  forces  which  tend  to  isolate 
individuals  and  which  scarcely  any  political  organization 
seems  able  to  influence.  Science  becomes  more  and  more 
objective  and  less  human,  that  is  to  say,  less  social.  The 
time  is  not  far  past  when  scholars  argued  the  most  ab- 
stract questions  through  letters,  took  long  journeys  to 
meet  one  another  and  made  extended  sojourns  together 
to  discuss  ideas.  We  no  longer  simply  pore  over  books; 
we  seek  instruction  from  them,  sometimes  arguments. 
But  the  name  of  the  author  is  of  no  moment  to  us.  We 
cite  it  through  literary  probity,  but  rather  as  indication 
along  with  the  date  of  the  publication  and  the  name  of 
the  editor.  The  most  objective  work,  that  which  escapes 
most  completely  every  influence  of  environment,  is  the 
one  we  esteem  most  highly. 

On  the  other  hand,  the  practical  life  of  modern  times 
permits  man  to  break  every  psychological  bond  with  so- 
ciety. We  can  benefit  by  all  the  advantages  of  civiliza- 
tion and  procure  for  ourselves  all  the  resources  of  intel- 
lectual and  material  life  by  automatic  processes.  Busi- 
ness life  is  equally  objective.  Formerly  no  one  bought 
anything  without  lengthy  overtures  and  much  discussion. 
Today,  we  look  up  the  market  price,  sign  an  order  and  all 
is  finished. 

Likewise  we  must  not  count  upon  education  to  social- 
ize thought.  If,  however,  we  suppose  every  individual  to 
have  his  full  share,  and  that  in  spite  of  the  differences  in 
the  mediums  of  instruction,  there  might  be  an  ultimate 
attainment  of  this  fine  result  of  rendering  all  men  equal, 
everyone  would  then  always  be  able  to  do  without  his 


§  5  ]     LAW  AND  COLLECTIVE  PSYCHOLOGY     179 

neighbor  —  would  be  self-sufficient  and  free  from  any  need 
of  the  cooperation  of  the  crowd. 

§  5.  The  Law  and  Collective  Psychology.  Law  is  a  so- 
cial affair,  in  that  society  is  a  condition  of  its  existence; 
its  only  "raison  d'etre"  is  in  enabling  certain  men  to 
dwell  in  peace  and  harmony,  and  in  removing  the  diffi- 
culties created  by  community  life  or  even  by  that  of  a 
simple  neighborhood.  But  is  it  a  social  product,  an  in- 
vention of  collective  thought?  That  is  another  quesion. 
The  majority  of  industrial  inventions  are  designed  for 
the  use  of  the  public  at  large  and  are  social  in  purpose, 
but  they  result  from  ingenious  and  complicated  calcula- 
tions which  one  or  more  scientists  have  pursued  by  retir- 
ing within  themselves,  by  isolating  themselves  from  the 
crowd  for  days  and  nights.  Social  "raison  d'etre,"  social 
interest,  and  social  origin  are  very  different  points  of 
view,  one  of  which  does  not  necessarily  entail  the  others. 
These  different  ideas  are  not  always  clearly  distinguished. 
We  should  like  to  try  and  point  out  to  what  extent  the 
making  of  the  law  is,  and  has  been,  a  phenomenon  of  col- 
lective or  of  individual  psychology.  Only  the  broad  out- 
lines of  the  question  will  be  traced  in  the  following  pages. 
Important  works  —  whose  logical  conclusions  we  accept 
only  partially  —  have  furnished  a  large  part  of  the  neces- 
sary information. 

1 :  ROOTS  OF  LAW  IN  RELIGION  AND  MAGIC.  The  Law, 
the  institutions  and  the  legal  customs  of  primitive  peo- 
ples, or  those  whom  we  consider  as  such,  are  very  closely 
connected  with  religion.  The  king  is  a  descendant  of  a 
national  divinity;  the  judge  and  the  lawmaker  transmit  to 
the  people  the  will  of  the  gods  which  becomes  transformed 
into  law,  and  these  laws  sanction  religious  obligations 
which  are  at  the  same  time  ritualistic  and  moral.  We  do 
not  believe  any  law  to  be  exclusively  of  religious  origin; 
but  it  is  none  the  less  certain  that  the  influence  of  religion 
is  considerable. 


180  SOCIAL  PSYCHOLOGY  [CH.V 

(1)  Religious  and  secular  —  collective  and  individual  — 
elements  in  origin  of  law. 

Is  religion  as  a  whole  a  phenomenon  of  collective  psy- 
chology? It  is  not  in  our  province  to  decide  this  ques- 
tion. It  is  certain,  however,  that  every  religion  implies 
the  existence  of  a  collective  belief  in  the  mysterious,  su- 
pernatural, and  sacred  character  of  certain  things.  The 
notion  "sacred"  is  perhaps  in  itself  a  product  of  collective 
psychology;  in  any  case,  it  assumed  at  a  very  early  date, 
the  collective  form  of  an  opinion  which  derives  a  part  of 
its  force  from  its  solemn  public  affirmation  under  certain 
circumstances. 

Every  juridical  provision  was  therefore  a  sacred  thing 
and  its  violation  a  sacrilege,  that  is  to  say,  not  only  an 
offence  to  a  supernatural  being,  but  to  the  strongest  sen- 
timent experienced  in  common  by  the  individuals  of  a 
group,  to  the  opinion  which  is  most  widespread  and  in 
regard  to  which  no  contradiction  is  tolerated. 

But  even  when  the  law  appears  in  its  most  unquestion- 
ably religious  character,  it  is  far  from  being  certain  that 
the  provisions  themselves  are  not  of  different  origin.  The 
role  of  the  individual  legislator  who  reflects  upon  the 
political,  practical  and  hygienic  reasons  of  laws,  is  not 
excluded  by  the  fact  that  obedience  to  his  work  is  sanc- 
tioned by  the  most  powerful  collective  thought  of  the 
group.  Thus,  to  take  the  most  religious  legislations,  the 
Koran  easily  allows  us  to  divine  the  individual  intentions 
that  Mahomet  entrusted  to  the  powerful  collective  thought 
which  constitutes  the  Moslem's  religion.  Thus  the 
Hindu  Law  is  essentially  religious.  This  is  not  saying  that 
the  provisions  which  govern  each  caste  have  any  relation- 
ship whatever  with  the  dogmas  of  Brahmanism.  On  the 
contrary,  it  is  very  probable  that  customs  of  very  differ- 
ent origin  have,  for  political  reasons,  received  the  sanc- 
tion of  the  authority  of  the  Brahmans.  Finally,  Christian 
canon  law  is  composed,  in  large  part,  of  secular  elements. 


§  5  ]     LAW  AND  COLLECTIVE  PSYCHOLOGY     181 

By  the  technic  of  its  elaboration  and  its  interpretation, 
and  by  the  sources  from  which  it  is  derived,  it  is  almost 
entirely  individual.  It  is  impossible  to  consider  it  as  a 
product  of  collective  psychology. 

(2)  Collective  conception  of  magic  preferable  to  the  indi- 
vidual conception. 

Especially  is  the  origin  of  institutions  of  general  inter- 
est to  be  attributed  to  religion.  Institutions  of  private 
interest  (i.e.,  personal  property  and  the  law  of  obliga- 
tions) have  developed  under  the  protection  of  a  some- 
what related  conception,  that  of  magic.  This  has  recently 
been  established  in  a  manner  which  seems  conclusive,  by 
researches  both  ingenious  and  well-grounded.  Magic  has 
favored  the  birth  of  individual  rights;  the  magician  has 
been  the  protector  of  our  most  modern  juridical  concep- 
tions. That  is  not  at  all  surprising;  for  the  majority  of 
sciences,  arts,  and  industries  owe  something  to  these  sin- 
gular beliefs,  to  these  mysterious  practices,  to  this  kind  of 
irregular  religion  which  spreads  many  correct  observances 
and  useful  procedures. 

In  juridical  matters,  magic  has  worked  principally  by  a 
course  of  intimidation.  It  exploited  successfully  the  gen- 
eral belief  in  charms  and  in  the  power  which  certain  per- 
sons are  thought  to  have,  in  certain  instances,  of  causing 
the  death  of  any  particular  individual  by  devoting  to  de- 
struction, with  various  ceremonies,  the  objects  he  has 
touched  and  the  ground  upon  which  he  has  walked.  The 
victims  of  a  robbery,  in  the  spirit  of  revenge,  cast  a  spell 
directly  upon  the  robber,  giving  him  in  order  to  frighten 
him,  the  alternative  of  returning  the  stolen  object  or 
dying  under  the  influence  of  the  spell.  Certain  magicians 
made  great  pretensions  of  being  able  to  discover  thieves; 
they  would  sniff  the  ground,  and,  entirely  naked  or  clad 
in  special  garments,  force  themselves  into  houses  and 
perform  certain  ceremonies,  and  then  announce  whether 
or  not  the  object  had  ever  been  brought  there.  Several 


182  SOCIAL  PSYCHOLOGY  [Ca.V 

penal  processes  have  preserved  traces  of  these  sorceries 
which  constituted  an  often  very  effective  protection  for 
private  property.  Magic  sanctioned  contracts  between 
individuals  before  the  legislator  was  concerned  with  them. 
The  parties  would  submit  themselves  to  the  consequences 
of  the  spell,  and  would  themselves  procure  for  their  ad- 
versaries the  means  of  fulfilling  it  in  case  they  failed  in 
their  promises.  The  research  of  M.  Huvelin  proves  there- 
fore that  magic  has  played  an  important  part  in  certain 
branches  of  the  law;  a  fairly  large  number  of  the  riddles 
of  juridical  history  are  explained  by  taking  this  into  con- 
sideration. 

Generally  we  conceive  a  magician  as  a  person  who 
claims,  in  good  or  bad  faith,  an  imaginary  power,  who  in- 
vents singular  practices,  and,  when  need  be,  makes1  use  of 
trickery  to  astonish  or  impress  the  public.  We  attribute 
to  him  the  active  role  and  to  the  collectivity  which  has 
confidence  in  him,  the  purely  passive  r61e  of  a  dupe  in 
the  hands  of  an  impostor.  One  of  the  works  of  MM. 
Hubert  and  Hauss  proves  that  this  conception  is  histori- 
cally false. 

Both  magic  and  magician  are  creations  of  collective 
psychology.  Because  certain  individuals  are  abnormal 
in  appearance,  or  are  abnormally  situated,  opinion  attrib- 
utes to  them  supernatural  powers.  Popular  sentiment 
creates  magicians  without  consulting  those  to  whom  the 
quality  is  attributed.  People  believe  in  them  because  the 
belief  of  each  individual  depends  upon  that  of  the  others. 
They  have  heard,  under  impressive  circumstances,  ac- 
counts of  wonders  which  have  been  performed;  they  were 
present  in  a  body  at  some  of  these  performances,  and  are 
mutually  convinced  that  they  beheld  marvelous  things. 
The  sorcerer  has  little  to  do  with  creating  the  belief  in  his 
power;  the  community  wants  to  believe  in  him. 

He  would,  indeed,  have  to  do  a  great  deal  to  per- 
suade them  that  he  is  only  an  ordinary  man.  He  is  in 


§  5  ]     LAW  AND  COLLECTIVE  PSYCHOLOGY     183 

that  psychological  state  —  in  which  we  all  are,  more  or 
less  —  which  inclines  us  to  harmonize  our  conduct  with 
our  social  condition,  to  the  opinion  which  is  held  concern- 
ing us.  Even  in  our  times,  a  certain  power  impels  us  to 
uphold  the  type,  the  character  which  others  conceive  us 
to  have,  and  to  perform  the  duty  which  our  family,  friends 
and  acquaintances  assign  to  us,  even  when  it  agrees  with 
neither  our  tastes  nor  our  talents.  The  sorcerer  is  a  sor- 
cerer because  he  is  believed  to  be  a  sorcerer,  even  if  he 
does  not  wish  to  be,  just  as  he  who  has  the  reputation  of 
joking  is  obliged  to  jest  even  if  he  has  no  inclination  to 
do  so.  The  serious  man,  the  man  of  steady  morals,  is 
maintained  in  his  course  of  conduct  by  the  general  respect 
accorded  him ;  his  neighbor,  a  good-natured  rake,  is  known 
and  excused  as  such.  If  their  roles  be  reversed,  if  the  se- 
rious man  become  the  rake,  and  the  rake,  the  serious  man, 
there  will  be  a  double  revolt  of  public  opinion  which  will 
be  vexed  by  the  triumph  of  virtue  quite  as  much  as  by 
that  of  vice.  Both  disturb  its  habitual  conceptions. 
Opinion  likes  everyone  to  remain  in  his  own  place,  that 
is,  in  the  practice  of  the  virtues  and  vices  which  it  has  at- 
tributed to  him. 

To  be  sure,  we  are  not  obliged  to  obey  opinion.  But 
the  act  of  making  our  appearance  in  a  new  light  requires 
a  certain  effort;  to  clash  with  the  conception  which  is 
held  of  us,  to  wish  to  substitute  for  it  another  which  is 
more  favorable  or  more  unfavorable,  is  a  real  labor  pos- 
sible in  our  day  but  probably  very  difficult  formerly. 
The  sorcerer  would  probably  have  been  unable  to  make 
himself  mistrusted.  It  is  quite  likely  that  seeing  every- 
one else  believe  in  his  power,  he  believed  in  it  himself. 
At  least  he  could  doubt  neither  its  importance  nor  its 
utility. 

In  the  same  way,  magic  is  not  the  work  of  the  magi- 
cian. By  imposing  his  profession  upon  him,  opinion  has 
also  imposed  upon  him  his  sphere  of  action  and  the  rites 


184  SOCIAL  PSYCHOLOGY  [Cfe.V 

which  he  must  employ.  Everyone  knows  what  he  is  sup- 
posed to  be  able  to  do;  no  one  would  believe  him  if  he 
dared  to  do  more.  We  know  how  he  ought  to  act;  and 
would  desert  him  if  he  acted  otherwise. 

We  believe  therefore  that,  in  its  broad  outlines,  the 
collective  conception  of  magic  should  be  preferred  to  the 
individual  conception.  Thus  general  and  juridical  magic 
have  been  observed  and  described  with  much  clearness  of 
insight,  by  the  disciples  of  the  Durkheim  school.  But 
when  it  has  been  a  question  of  connecting  their  conclu- 
sions from  these  observations  with  the  general  principles 
of  the  system,  these  disciples,  in  order  to  remain  faithful 
to  the  principles,  have  been  obliged  to  sacrifice  a  part  of 
the  force  of  their  personal  logic.  They  have  refused  to 
"revise  the  idea  of  the  social"  as  Durkheim  formulated 
it,  in  spite  of  the  fact  that  this  would  have  been  the  ra- 
tional outcome  of  their  labors. 

(3)  Confusion  of  the  collective  and  the  social,  a  source  of 
false  distinction  between  religion  and  magic.  The  idea  of 
the  social,  as  they  conceive  it,  involves  the  psychologic 
unity  of  the  group.  The  group  can  have  but  a  single 
mind,  a  single  consciousness.  From  it  the  individuals 
imbibe  their  beliefs,  and  consequently  these  beliefs  are 
always  allowable  and  even  obligatory.  For  this  school, 
a  collective  thought  in  disharmony  with  society  is 
nonsense. 

Now  primitive  societies  are  in  communication  with  the 
gods  through  religion.  Through  it,  men  can  appease  and 
render  favorable  the  supernatural  powers,  and  interest 
them  in  their  plans  by  vows,  sacrifices  and  rites  of  a  varied 
nature.  Religion  is  a  social  belief,  a  product  of  the  col- 
lective activity  of  the  group.  Magic  is  a  product  of  this 
same  activity  and  is  based  upon  beliefs  which  emanate 
from  the  same  psychological  being ;  it  is  likewise  addressed 
to  the  gods  by  similar  proceedings  and  should  have  the 
same  result  in  appeasing  and  rendering  them  favorable. 


§  5  ]     LAW  AND  COLLECTIVE  PSYCHOLOGY     185 

Is  this  not  saying  that  magic  and  religion  are  one  and  the 
same  thing?  And  yet,  in  the  majority  of  civilizations  and 
often  during  the  whole  course  of  their  development,  there 
exist  religion  and  magic,  priests  and  magicians.  Every- 
body knows  there  is  a  distinction  and  there  ought  to  be 
some  easy  means  of  making  it. 

They  are  recognized  in  this  way;  the  priest  acts  in  pub- 
lic, sometimes  with  the  cooperation  of  the  whole  people. 
He  who  wishes  to  perform  a  religious  act  does  not  conceal 
himself.  Religion  is  generally  supported  by  the  public 
powers.  On  the  other  hand,  the  sorcerer  and  he  who  has 
recourse  to  his  offices  always  act  more  or  less  in  secret 
and  by  secret  rites.  They  are,  moreover,  very  irregular 
in  the  amount  of  care  they  take  to  preserve  this  secrecy, 
for  sometimes  the  public  powers  tolerate  and  even  encour- 
age them,  while  at  others,  the  same  powers  strenuously 
forbid  any  act  of  sorcery  and  punish  very  severely  those 
who  are  guilty  of  them. 

Why  is  society  ashamed  of  beliefs  which  it  has  itself 
fashioned  ?  Why  does  it  persecute  or  censure  the  sorcerer 
upon  whom  it  has  itself  imposed  his  role  and  the  person 
who  employs  him,  when  everybody  believes  in  the 
efficacy  of  sorcery?  We  cannot  censure  the  belief  in 
magic,  for  it  is  common  to  all;  nor  magical  rites,  since 
they  are  of  the  same  nature  as  religious  rites.  What  so- 
ciety, in  so  far  as  the  collective  body  is  concerned,  regards 
unfavorably  is  that  the  sorcerer  places  himself  at  the 
service  of  particular  persons,  that  he  takes  advantage  of 
the  public  power  when  he  recognizes  the  common  belief  in 
private  interests.  Magic  starts  from  religion,  becomes 
detached  from  it,  assumes  an  unlawful  character,  and 
conceals  itself  more  or  less  in  darkness  where  it  allows 
everyone  to  defend  his  own  rights  and  procure  for  him- 
self particular  advantages.  Thus  has  been  given  a  very 
ingenious  explanation  —  admissible  at  first  glance  —  of  the 
anti-social  institution,  magic,  a  conception  which  with 


186  SOCIAL  PSYCHOLOGY  [CH.V 

out  that  explanation  would  be  very  much  like  Ibsen's  fish 
that  was  afraid  of  water. 

Unfortunately,  the  facts  by  no  means  authorize  the  as- 
sertion that  magic  differs  from  religion  only  in  the  way  it 
is  used.  It  has  been  clearly  shown  that  both  express  be- 
liefs collective  in  their  origin,  and  that  the  various  ele- 
ments of  the  magical  and  the  religious  act  are  apparently 
very  strikingly  related.  They  are  not  opposed  to  each 
other  by  nature.  They  may  both  address  themselves  to 
beneficent  or  malevolent  deities,  may  both  attribute  to 
certain  objects  wonderful  properties,  and  both  are  gener- 
ally of  a  meticulous  formalism.  It  cannot  be  concluded 
from  this  that  there  has  been  any  time  in  history  when 
the  two  institutions  were  identical  in  form  and  substance. 
For  that  to  be  true,  there  would  have  to  be  cited  to  us  a 
single  instant  in  any  civilization  when  the  priest  and  the 
sorcerer  had  exactly  the  same  beliefs,  performed  exactly 
the  same  ceremonies  but  when,  nevertheless,  a  distinction 
could  be  made  between  them. 

Quite  to  the  contrary,  the  sorcerer  enters  into  compe- 
tition with  religion  by  processes  which  are  entirely  his 
own.  Sometimes  he  revives  abandoned  rites  and  poses  as 
the  representative  of  religions  which  have  been  van- 
quished but  are  still  held  in  memory  by  the  people.  Some- 
times he  parodies  the  official  cult,  says  the  prayers  in  an 
opposite  sense,  makes  the  signs  backwards,  thus  showing 
that  there  exists  between  him  and  religion  a  systematic 
opposition,  a  rivalry. 

If  the  magician  were  simply  the  Prometheus  who  steals 
the  flame  from  the  altar  of  collective  beliefs  in  behalf  of 
individuals,  why  would  he  not  give  it  as  he  received  it? 
If  he  and  his  followers  believed  in  the  efficacy  of  the  reli- 
gious act,  why  would  they  dare  to  change  it,  ridicule  it, 
and  sometimes  profane  its  gestures  and  formulas?  Is  it 
not  through  lack  of  confidence  in  the  physician  that  one 
appeals  to  the  medium  ? 


§  5  ]     LAW  AND  COLLECTIVE  PSYCHOLOGY     187 

On  the  other  hand,  have  official  religions  ever  refused 
to  protect  particular  interests?  The  paganism  of  the 
Greeks  and  Romans  is  most  certainly  not  an  instance. 
Perseus  complained  bitterly  of  the  selfishness  of  the  vows 
which  were  addressed  to  the  official  deities  and  enforced 
with  showy  sacrifices,  and  examples  of  immoral  prayers 
are  not  rare  in  the  literature  of  many  nations.  I  do  not 
know  whether  an  epoch  could  be  cited  that  was  otherwise 
in  this  respect.  If  such  were  the  case,  those  who  prac- 
ticed sorcery  would  soon  have  outlived  their  usefulness, 
and  it  may  be  asked  how  they  were  able  to  survive  for  so 
long  a  time  their  reason  for  existence. 

Finally,  if  magic  had  been  anarchy,  it  would  not  have 
been  able  to  beget  any  law  and  bring  about  any  sanction 
of  private  property  or  obligations.  Magic  furnishes  to 
individuals  an  imaginary  but  powerful  weapon,  without 
determining  who  has  the  right  to  use  it.  The  robber 
could  as  well  cast  a  spell  upon  the  robbed,  as  the  robbed 
upon  the  robber;  the  innocent  and  the  guilty,  the  honest 
man  and  the  fraud,  were  equally  exposed  to  the  risk  of 
being  the  victims  of  sorcery.  The  intervention  of  the  law 
was  necessary  to  regulate  sorcery,  to  permit  it  in  certain 
instances,  to  prohibit  it  in  others;  that  is  to  say,  magic 
was  not  able  to  serve  in  establishing  private  rights  except 
when  these  rights  had  been  officially  recognized  as  legiti- 
mate. Legal  systems  which  impose  magical  procedures 
for  the  discovery  of  crime  are  even  cited.  It  is  possible, 
moreover,  nay  probable,  that  even  without  the  interven- 
tion of  the  public  powers,  general  belief  caused  the  sor- 
cery directed  against  the  one  who  was  in  the  wrong  to  be 
regarded  as  more  formidable.  That  none  the  less  implies 
the  recognition  by  the  collectivity  of  the  legitimacy  of 
the  act  that  is  guaranteed  by  magic. 

On  the  other  hand,  by  recasting  the  idea  of  the  social, 
it  is  easy  to  dissipate  the  difficulty.  If  the  political,  even 
the  primitive,  group,  is  not,  as  I  maintain,  a  psycholog- 


188  SOCIAL  PSYCHOLOGY  [Cn.  V 

ical  unity,  but  only  the  environment  in  which  collective 
thought  of  the  most  varied  nature  may  arise  and  develop, 
the  respective  positions  and  the  different  characteristics 
of  magic  and  religion  are  still  comprehensible.  They  may 
not  both  possess  authority  for  the  same  men  united  under 
the  same  conditions,  but  perhaps  for  these  same  men 
united  under  different  conditions,  or  for  a  part  of  these 
same  men  other  men  differently  grouped.  The  collective 
being  which  believes  in  religion  is  not  the  same  as  that 
which  believes  in  magic,  certainly  not  when  both  inhabit, 
so  to  speak,  the  same  country. 

Perhaps  these  two  categories  of  belief  do  not  affect  the 
same  minds;  perhaps  they  affect  the  same  minds  sub- 
mitted to  different  influences.  Religion  is  official  collec- 
tive psychology.  Religious  emotion  seizes  upon  a  crowd 
assembled  in  the  temple  at  the  moment  of  sacrifice.  Each 
carries  the  memory  of  it  to  his  home;  but  with  the  indi- 
vidual isolated,  it  has  a  tendency  to  diminish  sensibly. 
Magic  is  a  vague  and  obscure  current  of  opinion  which 
impresses  the  individual  because  he  does  not  know  how 
many  share  it.  It  is  secretly  communicated  by  recitals  of 
parents  to  their  children,  in  small  and  intimate  gatherings, 
or  by  other  unknown  means.  It  carries  with  it  the  proof 
of  an  instinctive  mistrust  of  the  individual  for  what  is  of- 
ficial (for  whatever  tries  to  impose  itself  upon  his  convic- 
tion, and  to  which  he  gives  an  adherence  more  apparent 
than  real)  and  of  his  leaning  towards  anything  that  has 
the  appearance  of  attempting  to  conceal  itself.  The  psy- 
chological force  of  magic  may  moreover  be  very  closely 
related  to  the  psychological  force  in  religion  and  in  poli- 
tics. There  exists  then  no  hostility  between  these  three 
powers;  they  are  quite  in  accord  and  are  complementary 
to  one  another  rather  than  in  opposition.  Society  toler- 
ates, encourages,  and  uses  the  sorcerer  for  the  general 
need.  In  other  civilizations,  the  sorcerer  is  condemned, 
prohibited  and  persecuted,  even  when  he  is  known  to  do 


§  5  ]     LAW  AND  COLLECTIVE  PSYCHOLOGY     189 

good.  Thus  individuals  will  be  prevented  from  regaining 
their  health  through  his  agency.  He  is  not  persecuted 
because  he  does  harm,  but  because  the  collective  thought 
from  which  he  emanates  is  incompatible  with  the  reli- 
gious or  the  political  idea.  The  essentially  fluctuating 
character  that  has  signalized  the  relation  between  con- 
ceptions of  magic  and  of  religion  and  of  society,  is  very 
easily  explained  if  we  separate  them  into  three  types 
which  are  independent  in  their  very  origin ;  but  this  char- 
acter becomes  incomprehensible  if  they  are  regarded  as 
the  product  of  one  and  the  same  cause. 

We  have  laid  stress  upon  researches  which,  in  their 
subject,  often  seem  outside  of  juridical  history;  perhaps 
we  have  criticized  them  more  earnestly  than  our  ability 
justified.  Yet  they  are  of  foremost  importance  in  the 
establishment  of  a  historical  method  as  well  as  in  the 
philosophic  understanding  of  institutions.  One  proves 
magic  to  be  the  source  of  individual  rights,  the  other 
characterizes  the  nature  of  magic  as  a  product  of 
collective  thought;  and  these  conclusions,  which  appear 
completely  justified  to  us,  throw  a  new  light  upon  the 
beginning  of  private  property  and  obligations.  But 
ought  we  to  confuse  the  collective  and  the  social,  to 
admit  the  thesis  that  the  thought  of  the  group  was 
the  sole  dominating  force,  and  governed  human  concep- 
tions as  a  whole  until  magic  arose  and  liberated  the 
individual  interest?  We  do  not  think  so.  The  law 
has  a  collective  but  not  a  social  origin.  The  collective 
mind,  which  presents  certain  constant  characteristics, 
may  appear,  however,  under  very  varied  forms;  it  may  be, 
according  to  circumstances,  lawful  or  unlawful  in  the 
eyes  of  the  political  collectivity.  We  refrain  from  the 
statement  of  any  general  formula  upon  the  relations  be- 
tween these  several  psychological  forces,  and  obligate  our- 
selves to  substitute,  in  each  instance,  special  analyses  for 
the  general  syntheses  which  are  presented  to  us. 


190  SOCIAL  PSYCHOLOGY  [Cn.V 

2:  DOUBLE  TENDENCY  OF  JURIDICAL  SCIENCE.  Thus 
the  law  is  collective  in  its  religious  and  magical  roots. 
This  is  not  saying  that  there  was  nothing  individual  about 
it  in  its  first  stages.  We  have  pointed  out  an  example 
of  this  in  the  sources  of  penal  law,  and  we  believe  in  the 
primitive  collaboration  of  psychological  forces  of  different 
natures.  But,  in  order  to  simplify  the  exposition,  we  set 
aside,  for  the  time  being,  the  original  role  of  the  individual, 
and  will  consider  the  law  as  a  product  of  collective  beliefs. 

Law  exists  then  under  this  special  form  where  it  has  to 
be  upheld  in  its  every  application  by  the  spirit  of  the 
crowd  or  tradition.  It  presents  a  vague  and  incoherent 
aspect.  Every  time  that  a  new  case  is  presented,  people 
hesitate;  everybody  tries  to  find  out  what  his  neighbor 
thinks  instead  of  seeking  the  solution  of  the  matter  in 
reasoning  by  analogy  or  by  "a  fortiori."  But  every 
human  thought  is  capable  of  assuming  an  individual 
form.  Isolated  persons  can  reflect  upon  juridical  ques- 
tions, bring  together,  classify  and  compare  the  decisions 
of  popular  tribunals,  and  look  for  their  "raisons  d'etre"; 
in  a  word,  can  apply  all  the  force  of  their  personal  logic 
to  custom  and  to  juridical  decision,  and  accordingly 
transform  their  nature. 

Every  human  thought  is  capable  of  being  systematized, 
of  changing  its  base,  of  substituting  for  the  communal 
emotion,  for  the  unreflected  opinion  which  was  its  primary 
cause,  a  more  or  less  sound  course  of  argument.  But  the 
various  arts  and  sciences  have  this  power  to  very  dif- 
ferent degrees.  For  instance,  traditional  learning  is  com- 
pletely at  the  disposal  of  the  scholar,  who  is  entirely  free 
to  accept  and  reject  whatever  he  pleases.  Philosophy  and 
the  natural  sciences  have  been  privileged  in  this  respect. 
But  there  are  other  cases  where  the  collectivity,  public 
opinion,  never  renounces  its  right  of  surveillance  over 
private  work.  The  moralist,  the  jurist,  the  artist,  the 
priest,  the  sorcerer,  and  even  the  physician,  is  and  has 


§  5  ]     LAW  AND  COLLECTIVE  PSYCHOLOGY     191 

always  been  obliged  to  respect  certain  principles,  certain 
opinions  and  certain  dogmas.  In  the  first  place  the  jurist 
collects  customs  and  judicial  decisions.  He  does  not  in- 
vent them  and  if  he  finds  them  unreasonable,  he  cannot 
for  that  reason  omit  them  nor  add  to  the  law.  No  more 
can  he  employ  a  technic  which  would  be  above  the  in- 
telligence of  those  who  have  to  study  the  laws.  Re- 
ligion becomes  individualized  in  a  way  different  from  the 
law;  its  dogmas  are  no  longer  inflexible,  but  for  that  very 
reason,  the  rigorously  logical  deductions  which  one  brain 
draws  from  these  dogmas  may  the  more  easily,  in  spite 
of  their  subtlety,  become  imposed  upon  the  masses. 

Now  we  have  admitted  that  primitive  law  under  its 
collective  form  was  fused  with  religion  and  magic. 
Consequently  juridical  science  will  show  a  double  tend- 
ency to  become,  on  the  one  hand,  organized  into  an  in- 
dependent science,  to  become  secularized,  and  on  the 
other  hand,  to  become  more  scientific,  individualized. 
But,  according  to  the  civilization,  the  double  phenomenon 
has  been  presented  in  a  different  order.  Certain  juridical 
technics  (Hindu,  Roman,  Hebrew,  and  Christian  canon 
law  in  certain  institutions)  were  formed  by  religious 
logic;  the  priests  had  reflected  upon  them  before  the  lay- 
men; and  when  secularization  began,  the  law  was  already 
individualized.  On  the  other  hand,  among  the  Germanic 
peoples,  juridical  secularization  is  very  old,  and  individual- 
ization,  or  juridical  science,  very  recent.  Institutions  re- 
mained for  a  long  time  under  the  regime  of  collective  in- 
terpretation. If  the  logic  of  jurists  and  the  mentality  of 
practicing  lawyers  are  so  little  alike  in  various  countries, 
this  is  due,  in  great  part,  to  the  fact  that  certain  laws  pre- 
serve the  traces  of  processes  of  religious  individualization, 
while  others  have  been  obliged  to  find  their  method  and 
their  practical  application  elsewhere. 

Magic,  in  its  turn,  had  its  schools  and  its  scholarly  par- 
tisans who  investigated  its  rationale.  Did  it  still  contain 


192  SOCIAL  PSYCHOLOGY  [CH.V 

juridical  elements  at  this  epoch?  Is  there  in  any  country 
an  institution  which  was  submitted  to  the  personal 
criticism  of  the  sorcerer  and  thus  became  individualized 
through  magic?  That  is  very  possible.  But  studies  upon 
the  law  of  magic  are  too  recent  for  an  answer  to  be  pos- 
sible at  this  time.  We  shall  revert  to  this  question  in 
our  history  of  juridical  technic  if  there  is  occasion. 

3:  SUBSTITUTION  OF  COLLECTIVE  THOUGHT  FOR 
GENERAL  CONSCIOUSNESS.  Juristic  treatises  and,  up  to  a 
certain  point,  judicial  decision,  tend  to  make  of  the  law 
a  science  of  individual  logic  which  dominates  the  crowd 
and  opinion.  But  in  becoming  too  abstract,  this  science 
becomes  unpopular.  As  for  the  jurist  who  has  just  set 
forth  in  public  his  quasi -algebraic  reasons  in  order  to 
justify  solutions  which  might  appear  arbitrary  or  tyran- 
nical, he  wonders  if  the  people  are  not  laughing  at  him. 
The  same  doubt  seizes  the  judge,  whose  work  is  more  ap- 
preciated by  the  public  at  large  than  is  any  juristic  labor. 
He  easily  sacrifices  a  deduction  which  naturally  follows 
according  to  the  rules  of  the  syllogism,  but  which  his 
circle  of  friends  and  acquaintances  would  not  ratify. 
The  jurist  begins  by  protesting;  he  ends,  however,  by 
wondering  whether  solutions  useful  for  the  world  of  busi- 
ness can  be  found  in  his  library.  He  mistrusts  himself, 
and  in  his  turn  contributes  to  restoring  to  the  law  its 
collective  form. 

Then  these  principles  are  established,  that  the  law 
ought  to  be  at  the  time  of  its  creation  the  expression  of 
the  will  of  all,  or,  at  least,  of  the  greatest  number,  and  that 
this  originating,  creative  thought  and  all  the  modifications 
which  it  may  afterwards  undergo  in  the  country  ought  to 
be  instilled  into  the  judge  and  the  jurist. 

These  principles  —  in  so  far  as  they  are  principles  —  are 
not  open  to  criticism,  at  least  as  a  whole.  It  is  probable 
that  they  would  triumph  over  every  obstacle  quickly 
enough  if  there  were  any  practical  means  of  knowing  the 


§  5  ]    LAW  AND  COLLECTIVE  PSYCHOLOGY    193 

real  thought  of  the  majority.  Unfortunately,  these 
means  do  not  exist.  We  are  completely  ignorant  of  this 
general  consciousness  which  might  rightly  claim  the  title 
of  sovereign,  and  we  are  obliged  to  substitute  for  it  col- 
lective thought,  the  laborious  concoction  of  the  crowd  or 
of  opinion. 

Popular  assemblies  are  crowds;  parliaments  of  repre- 
sentative governments  are  crowds  chosen  in  other  gather- 
ings, namely  electoral  pollings  which  are  as  incoherent 
as  the  legislative  assemblies.  This  is  not  saying  that  this 
manner  of  making  the  law  is  to  be  condemned  and  has 
not  its  advantages;  but  it  is  not  altogether  that  of  faith- 
fully expressing  the  thoughts  of  a  people. 

The  referendum  is  beyond  question  much  the  most 
perfect  system  for  disentangling  the  ideas  of  the  majority. 
Practically,  we  can  scarcely  see  how  any  better  could  be 
imagined.  Scientifically,  it  reveals  to  us  currents  of 
opinion  rather  than  the  sum  total  of  personally  reflected 
thoughts. 

As  for  the  judge  and  jurist,  they  seldom  have  any  means 
whatever  of  knowing  what  the  country  thinks  upon  a 
question  of  law  or  legislation.  When  they  claim  to  be 
interpreters  of  the  common  conscience,  they  are  indulging 
in  a  wild  flight  of  the  imagination. 

Moreover,  when  a  people  or  an  assembly  has  gained  a 
clear  idea  of  the  difficulty  of  regulation  and  interpretation, 
they  voluntarily  allow  the  most  industrious  and  skilful  to 
frame  the  law,  and  confine  themselves  to  ratifying  or  re- 
jecting it,  so  that  the  law  relapses  into  the  domain  of 
scientific  and  individual  logic. 

Thus  the  elaborative  forces  of  the  law  act  and  react 
upon  one  another.  The  estimate  of  what  springs  from 
popular  collaboration  and  what  from  personal  labor  must 
be  made  from  hour  to  hour. 


194  SOCIAL  PSYCHOLOGY  [Cn.V 

BIBLIOGRAPHY 

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MILL,  Auguste  Comte  and  Positive  Philosophy;  HERBERT  SPENCER, 
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(1896);  SIMMEL,  Einleitung  in  die  Moralwissenschaft. 

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du  travail  social,  pp.  26,  58,  59,  66;  DURKHEIM  and  MAUSS,  De 
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cesse  dinamico  della  legge  (1893). 

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la  folie;  TANON,  Evolution  du  Droit  et  conscience  sociale,  p.  70; 
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§5]      LAW  AND  COLLECTIVE  PSYCHOLOGY    195 

MAKAREWICZ,  Einfuhrung  in  die  Philosophie  des  Strafrechts; 
HUBERT  and  MAUSS,  Esquisse  d'une  theorie  generate  de  la  magie, 
in  L'Annee  Sociologique  (1904),  pp.  3,  36,  88;  HUVELIN,  Magie  et 
Droit  individuel,  in  L'Annee  Sociologique  (1907),  pp.  1,  45;  LOT, 
Fideles  et  vassaux. 


§  1.  PSYCHOLOGICAL  CHARACTERISTICS  OF  JURIDICAL  FACTS.  — 
J2.  THE  LOGICALLY  AND  THE  HISTORICALLY  SIMPLE  IN  PSY- 
CHOLOGY.—§3.  HETEROGENEITY  OF  PSYCHOLOGICAL  CAUSES.— 
§4-  PSYCHOLOGICAL  EMBRYOLOGY.  — §  5.  CHARACTERISTICS  OF 
JURIDICAL  PSYCHOLOGY. 

§  1.  Psychological  Characteristics  of  Juridical  Facts. 
Those  who  demand  laws  or  are  disposed  to  accept  them,  as 
well  as  those  who  frame,  vote  for,  promulgate,  interpret, 
obey  or  disobey  them,  find  themselves  in  a  state  of  mind 
in  which  they  might  not  act  as  they  do  act,  and  might 
not  take  the  attitude  toward  the  law  that  they  do  take. 
The  sum  total  of  the  cerebral  labor  which  accompanies 
the  origin  of  a  work  of  theoretical  or  of  practical  law  is 
the  most  intimate  cause  of  its  production  and  of  its  char- 
acteristics. Every  juridical  fact  is  beyond  question  a 
psychological  phenomenon. 

From  all  time,  celebrated  legal  texts  have  been  encom- 
passed with  legends  which  manifest  the  state  of  mind  of 
those  who  formulated  and  of  those  who  accepted  or  de- 
manded them.  No  interpretation  of  any  legislative  re- 
form passes  which  does  not  set  forth  the  good  intentions 
of  the  legislator,  his  expectations,  and  the  means  by  which 
he  hopes  to  be  able  to  influence  the  minds  of  individuals. 
Jurists  have  always  psychologized,  —  a  rather  poor  psy- 
chology, indeed,  and  one  that  is  doubly  vicious  —  jurid- 
ically vicious,  because  it  invented  "ex  post  facto"  ideas  or 
sentiments  which  did  not  correspond  to  those  which  really 
played  a  part  in  the  making  of  the  laws.  Thus,  honest 
Thomas  Diafoirus  deluded  himself  when  he  carried  op- 

196 


§1]  JURIDICAL  FACTS  197 

timism  to  the  point  of  believing  that  the  old  custom  of 
marriage  by  rape  had  been  invented  to  spare  the  modesty 
of  the  maidens  of  antiquity,  and  to  save  them  any  occasion 
to  blush  while  acknowledging  that  marriage  would  be 
agreeable  to  them.  Down  to  comparatively  recent  times, 
lawyers  have  often  possessed  quite  as  little  insight  into 
the  psychological  explanation  of  ancient  and  even  of 
modern  laws.  When  they  were  not  mistaken  and  suc- 
ceeded in  reproducing  the  true  moral  atmosphere  in  which 
the  law  originated,  they  did  it  in  terms  of  ordinary  psy- 
chology that  were  badly  analyzed  and  of  no  possible 
scientific  value. 

The  question  resolves  itself  at  the  present  time  to 
this,  whether  a  genuine  psychology,  borrowed  from 
professional  psychologists  and  based  upon  history  and 
anything  else  that  may  aid  us  in  an  understanding  of 
the  past,  will  be  able  to  make  us  realize  in  what  way 
the  law  is  a  psychological  phenomenon,  —  how  it  is  formed 
and  transformed  by  human  thought.  Needless  to  say, 
we  do  not  expect  to  present  all  the  ideas  or  the  sentiments 
of  those  who  have  taken  part  in  the  framing  of  a  law  or 
been  parties  in  a  law-suit ;  that  would  be  time  lost ;  it  will 
be  enough  to  discover  the  principles  which  would  enable 
us  to  point  out  approximately  what  they  might  have  been. 

In  the  various  acts  of  human  life,  the  brain  does  not 
take  the  same  part,  does  not  play  the  same  role,  (a)  There 
are  some  which  are  the  product  of  reflection,  of  reason, 
which  performs  a  logical  operation  —  often  a  difficult  one  — 
before  culminating  in  the  result,  (b)  Others  are  preceded 
by  more  or  less  lively  emotions,  are  executed  in  a  moment 
of  anger,  fear,  or  pity,  and  thus  pertain  to  the  affective  or 
emotional  life.  Finally  (c),  in  other  instances,  a  man 
obeys  forces  which  are  foreign  to  him;  sometimes  it  is 
impossible,  or  nearly  so,  to  resist  them;  in  spite  of  himself 
he  does  what  he  considers  unreasonable  or  what  is  con- 
trary to  his  temperament.  At  other  times,  outside  pres- 


198  JURAL  PSYCHOLOGY  [Cn.VI 

sure  is  much  weaker,  but  he  obeys  it  just  the  same,  perhaps 
because  he  has  no  reason  for  not  obeying,  perhaps  also 
because  it  is  his  interest  to  do  so.  He  is  like  a  well- 
trained  horse  who  allows  himself  to  be  guided  by  the 
slightest  tightening  of  the  reins,  and  does  not  wait  until 
his  mouth  is  made  to  bleed  before  he  submits  his  will  to 
external  forces. 

Obedience  to  a  material  force  always  remains  a  psy- 
chological phenomenon.  It  is  true  that  if  this  obedience 
is  constant,  and  automatic,  is  invariably  repeated  every 
time  that  the  impetus  is  given  from  without,  this  psy- 
chological state  will  not  be  very  interesting.  This  will 
scarcely  be  anything  more  than  the  knot  by  which  the 
string  is  attached  to  the  jumping-jack,  and  if  we  prove 
once  for  all  that  it  is  well  tied,  we  need  no  longer  take  it 
into  account  and  can  connect  by  a  direct  relation  of  cause 
and  effect,  the  movements  of  the  hand  and  the  gestures 
of  the  wooden  figure.  Now  men  have  strings  tied  well 
enough  for  certain  material  and  external  forces  to  act 
identically  the  same  upon  the  large  majority,  but  too 
loosely  for  any  one  to  be  able  to  affirm  that  any  particular 
individual  will  necessarily  be  obliged  to  submit  to  their 
influence.  The  sciences  which  are  concerned  with  hu- 
manity taken  in  compact  groups  will  necessarily  perceive 
how  much  it  allows  itself  to  be  guided  by  the  external 
circumstances  of  life.  Thus  political  economy,  statistics, 
and,  perhaps,  sociology,  have  the  right  to  employ  objec- 
tive methods,  because  they  are  the  sciences  of  the  passive 
man,  of  the  fungible  man,  who,  in  a  given  situation,  will 
on  the  average  always  act  the  same.  Juridical  science  is 
a  science  of  the  active  man,  where  the  averages,  their  pro- 
gression and  their  recoil,  are  of  little  interest,  but  where 
a  single  original  personality  may  be  decisive  in  the  making 
of  the  law.  What  is  a  materialistic  cause  for  the  econo- 
mist-historian is  an  intellectual  cause  for  the  jurist- 
historian.  The  former  sees  the  main  body  of  the  great 


§2]          THE  SIMPLE  IN  PSYCHOLOGY  199 

mass  of  human  beings  following  uniform  directions  ac- 
cording as  the  objects  which  enable  them  to  live,  increase, 
decrease  or  displace  one  another.  He  will  be  able  to 
study  economic  man  face-to-face  with  self-interest,  like 
iron  in  front  of  the  magnet.  The  sciences,  on  the  con- 
trary, where  the  individual  may  have  a  decisive  value 
(psychology  and  legal  history)  will  have  to  take  account 
of  the  fact  that  if  man  obeys  things,  the  force  which  makes 
him  obey  is  in  himself  and  not  in  the  things,  and  conse- 
quently varies  according  to  the  cerebral  constitution  of 
each. 

Thus  three  kinds  of  causality  possible  for  the  develop- 
ment of  the  law  are  connected  with  psychology.  In  the 
history  of  the  law  we  may  imagine  (a)  rational  causes; 
(b)  sentimental  causes;  (c)  material  causes. 

These  three  orders  of  causes  are  sometimes  combined 
in  juridical  elaboration.  The  obligation  to  adapt  oneself 
to  the  external  circumstances  of  life  calls  forth  various 
reflections  and  feelings ;  a  work  of  sentiment  is  not  neces- 
sarily unreflective,  nor  a  work  of  logic  always  cold  and 
impartial.  One,  two  or  three  of  these  psychological 
elements  may  cooperate  in  a  single  concrete  phenomenon. 
It  is  none  the  less  necessary,  however,  to  make  a  theo- 
retical analysis  of  each. 

§  2.  The  Logically  amd  ike  Historically  Simple  in  Psy- 
chology. We  wish  then  to  ask  psychology  to  tell  us  what 
is  and  what  was  the  man  of  reason,  the  man  of  feeling  and 
the  selfish  man.  For  present  man,  no  doubt,  it  will  be 
able  to  reply;  but  can  it  do  so  for  the  past?  Much  in 
human  mentality  has  become  changed  since  the  primitive 
ages;  it  is  to  be  hoped,  however,  that  something  remains 
invariable,  that  something  is  identical  in  the  brute  and 
the  highest  human  being,  for  if  everything,  even  down  to 
the  simplest  forms  of  thought,  has  changed,  it  is  useless 
to  set  our  hearts  upon  the  solution  of  a  problem  the  very 
elements  of  which  we  do  not  possess.  We  cannot  under- 


200  JURAL  PSYCHOLOGY  [Cn.  VI 

stand  the  thoughts  of  another  human  being  except  by 
comparing  him  to  ourselves,  by  analyzing  our  ideas  and 
our  impressions,  and  by  simplifying,  enlarging  and  making 
of  them  new  combinations.  Without  the  discovery  of  a 
single  common  element,  no  matter  how  simple,  all  this 
becomes  impossible. 

Is  there  such  a  thing  as  a  psychologic  invariant  ?  How 
is  it  to  be  determined?  Very  often  what  is  simple  logi- 
cally is  confused  with  what  is  simple  historically,  and  what 
is  invariable  logically,  with  what  is  invariable  historically. 
We  have  often  been  deceived  into  thinking  that  by  dis- 
engaging from  our  nature  what  seems  most  crude  and 
rudimentary,  we  bring  to  light  what  has  been  in  existence 
in  the  human,  or  even  in  the  animal  soul  since  the  earliest 
times.  We  believe  that  we  suffer  with  tooth-ache  just  as 
one  suffered  with  it  a  hundred  or  a  thousand  years  ago 
and  as  every  animal  similarly  affected  suffers.  And  in 
that  we  are,  perhaps,  mistaken.  Sensations  must  have 
changed  as  have  thoughts,  for  bodies  have  changed  as 
well  as  minds.  History  has  modified  the  human  species 
in  its  physiological  as  well  as  in  its  psychological  prop- 
erties. There  is  still  another  reason  for  believing  that 
our  simple  sensations  are  no  longer  those  of  our  ancestors. 
According  to  circumstances,  thought  increases  or  dimin- 
ishes them.  Certain  physical  pains  may  pass  almost  un- 
noticed or  be  particularly  severe,  according  as  the  social 
or  the  sentimental  life  disregards  them  or  forces  our  at- 
tention upon  them. 

Thus,  not  in  the  broad  domain  of  possibilities,  but  in 
the  restricted  realm  of  history,  the  data  of  abstract  psy- 
chology are  not  as  unalterable  as  one  might  suppose.  It 
is  certain  that  elementary  relations  which,  on  account  of 
their  logical  simplicity,  have  been  considered  necessary  to 
the  general  mechanism  of  thought  and  animal  action  and 
accordingly  eternal,  hold  only  for  a  particular  age  and 
environment.  That  is  all  the  more  incontestable  since 


§2]  THE  SIMPLE  IN  PSYCHOLOGY  201 

nearly  all  philosophers  fail  to  appreciate  more  especially 
their  own  environment,  and  since  the  most  actual  and 
readily  perceived  realities  show  us  most  easily  the  rela- 
tivity of  their  teaching.  It  is  thus  with  the  relation  be- 
tween desire,  will  and  action.  It  is  often  said  "no  matter 
from  where  the  desire  springs,  it  determines  the  will,  and 
the  will,  the  action."  That  seems  to  be  logical  and  to 
explain  satisfactorily  the  psychological  mechanism.  Per- 
haps, indeed,  these  beautiful,  phosphorescent,  translucent 
jelly-fish  which  swim  in  the  aquarium  of  Naples  have  so 
simple  a  psychology.  Perhaps  they  can  will  what  they 
desire  and  desire  what  they  will.  But  for  a  long  time, 
civilized  man  has  recognized  only  a  very  accidental  re- 
lationship between  desire  and  will.  Agreement  between 
desire  and  will  presupposes  an  accord  of  the  power  of 
action  and  that  of  thought  which  has  been  destroyed  for 
a  very  long  time.  The  man  of  the  most  meagre  mentality 
or  of  the  greatest  force  can  no  longer  establish  this  equi- 
librium which  no  doubt  existed  originally. 

What  may  we  desire?  "The  existence  of  God,  the 
immortality  of  the  soul,  the  realization  of  an  ideal,"  or 
more  simply,  "the  affection  of  certain  persons,  the  suc- 
cess of  certain  convictions";  more  selfishly,  "a  certain 
notoriety,  long  life  and  good  health,  good  luck  in  the  lot- 
tery, and  a  bottle  of  good  wine  at  every  meal."  The  real- 
ization of  our  metaphysical  or  our  sensual  desires  does  not 
depend  upon  our  actions.  Desire  cannot  be  the  prelude 
of  the  will. 

What  may  we  will?  What  we  can,  that  is  to  say,  al- 
most nothing,  acts  of  whose  consequence,  neutral  or  dis- 
agreeable, we  are  ignorant.  If  the  will  meets  a  desire 
in  its  path,  generally  it  will  not  even  take  it  into  account. 
Certain  edibles  displayed  in  a  shop-window  create  de- 
sire, but  we  pass  them  without  temptation  —  for  the  idea 
of  temptation  is  already  a  psychological  archaism  —  to  find 
the  simplest  meal,  which  is  the  one  we  will. 


202  JURAL   PSYCHOLOGY  [CH.  VI 

This  is  not  said  in  a  spirit  of  pessimism;  modern  man 
has  his  pleasures,  but  he  does  not  owe  them  to  his  de- 
sires, which  he  can  seldom  gratify,  nor  to  his  will,  whose 
agreeable  or  disagreeable  consequences  he  cannot  foresee. 
Pleasure  is  given  "to  boot,"  as  a  reward  for  acts  whose 
import  he  has  not  foreseen. 

But  —  what  is  characteristic  —  this  divorce  of  the  will 
and  the  desire  does  not  exist  in  the  same  degree  with  all 
individuals  and  all  peoples.  Certain  events  accentuate  it, 
others  operate  in  a  contrary  direction.  Thus  Epictetus 
and  Epicurus  each  proposed  a  process  by  which  will  and 
desire  might  be  reconciled,  the  individual  taught  to  desire 
possible  things  or  will  desirable  things,  and  their  good 
advice  has  not  been  lost  upon  everybody.  Thus  the 
role  of  desire  is  to  be  understood  only  through  history  and 
eludes  systematic  psychology. 

Many  other  ideas,  equally  simple  from  the  point  of 
view  of  logic,  are  in  the  same  situation.  It  is  affirmed  that 
emotion  alone  and  not  reflection  can  instigate  action ;  this 
is  absolutely  false  for  modern  man,  though  perhaps  true 
for  primitive  beings.  The  relations  between  intelligence 
and  the  emotions,  intelligence  and  feeling,  the  will  and 
feeling,  correspond,  according  to  the  time,  to  irreconcilable 
formulas.  History  has  affected  us  much  more  than  we 
think.  It  has  not  developed  logically  the  elementary 
principles  of  primitive  brains;  it  has  upset  them  at  the 
chance  of  circumstance. 

§  3.  Heterogeneity  of  Psychological  Causes.  It  is  af- 
firmed that  everything  in  the  living  physiological  world 
develops  from  the  simple  to  the  complex  and  that  it  must 
be  the  same  in  the  moral  world.  This  is  very  possible. 
We  should  be  astonished  to  see  savages  creating  philosophy 
as  Plato  did,  mathematics  as  Leibnitz,  or  even,  relating  to 
us  as  does  Stendhal,  the  various  phases  of  their  passions. 
Undoubtedly,  they  think  much  more  simply.  But  can 
we  discover  this  simplicity  in  ourselves  by  analyzing  our- 


§  3  ]  HETEROGENEITY  203 

selves?  Is  it  a  logical  simplicity  ?  But  we  have  just  seen 
that  assertions  which  are  presented  as  very  simple  truths 
are  contrary  to  our  own  psychology.  We  do  not  know 
what  is  simple  in  ourselves  and  yet  we  claim  to  know  what 
is  simple  in  a  being  with  whom  our  relations  are  now  very 
vague.  The  thought  of  the  savage  is  assuredly  very 
simple  objectively,  but  may  it  not  be  for  us  something 
very  strange  and  complicated? 

Let  us  admit  that  we  understand  our  earliest  ancestor 
and  his  psychology;  if  we  add  to  him,  by  degrees,  the  more 
complex  qualities  which  bring  him  nearer  to  modern  man, 
we  shall  have  traced  a  picture  of  his  improvement  that 
is  logically  very  acceptable,  by  a  purely  deductive  process 
and  without  having  had  to  consult  history  in  the  least. 
"Primitive  man  is  essentially  selfish,  for  it  is  much  simpler 
to  consider  oneself  than  others.  He  becomes  interested, 
little  by  little,  in  his  relative,  his  neighbor,  his  wife  and 
his  ox,  for  the  advantages  he  derives  from  them,  after- 
wards for  the  pleasure  of  feeling  himself  with  them" 
and  we  arrive  by  insensible  gradations  at  the  noblest 
altruism.  That  is  a  model  of  those  easy  and  seductive 
"evolutions"  which  have  threatened  for  some  time  to 
become  the  method  of  psychological  history.  In  reality, 
we  have  applied  to  humanity  our  process  of  personal  edu- 
cation. It  would  be  of  quite  as  much  value  to  affirm  that 
men  invented  the  definite  article  in  the  first  place,  and 
declined  "rosa"  before  "dominus,"  for  it  seems  very 
simple  to  us  that  this  should  have  been  so.  The  law  of 
transition  from  the  simple  to  the  complex,  when  applied 
to  mental  development,  can  be  of  no  use;  for  what  is 
simple  to  us  is,  perhaps,  not  so  historically,  and  it  is  im- 
possible for  us  to  appraise  the  real  complexity  of  thoughts. 

Besides,  there  is  a  reason  which  prohibits  the  belief  that 
psychological  elements  have  evolved  from  the  simple  to 
the  complex  by  a  slow  and  regular  process.  Ideas  and 
feelings,  for  a  spiritualist  as  well  as  a  materialist,  are 


204  JURAL  PSYCHOLOGY  [Cn.VI 

abstract  things  which  depend  upon  the  brain.  In  psy- 
chology like  does  not  necessarily  engender  like.  A  feeling 
of  anger,  affection  or  pity  which  crosses  my  soul  or  a  work 
of  logic  which  occupies  my  mind  is  no  more  related, 
genealogically,  to  phenomena  of  the  same  nature  which 
have  been  produced  in  the  past,  than  is  the  light  of  the 
lamp  which  I  lighted  this  evening  the  offspring  of  that 
which  illuminated  the  room  yesterday.  Brains  only  can 
become  larger  and  of  a  finer  quality  through  toil  and  by 
heredity;  and  like  lamps,  these  brains  will,  according  to 
construction,  give  varying  degrees  of  light,  and  what  has 
contributed  to  make  the  brain  such  as  it  is  cannot  be  called 
the  moral  cause  of  this  light. 

Those  who  speak  of  literary,  artistic,  moral,  or  juridical 
evolution  are  not  absolutely  wrong,  provided  they  specify 
that  this  juxtaposition  of  likes  over  a  period  of  time  in 
no  wise  implies  a  uniform  and  continual  influence  of  what 
preceded  upon  what  follows,  and  that  there  cannot  be 
any  appreciable  causal  relation  between  two  moments  of 
one  and  the  same  art,  or  of  one  and  the  same  institution. 

With  stronger  reason,  a  historical  comparison  of  psy- 
chological phenomena  which  have  not  the  same  nature 
but  the  same  object  is  absolutely  deplorable,  if  care  is 
not  taken  to  exclude  every  idea  of  casuality.  It  is  al- 
lowable, indeed  it  is  even  interesting,  to  describe  the 
various  sentiments  which  men  have  had,  by  turn,  for 
their  gods  and  their  religion,  and  husbands  for  their  wives. 
But  to  affirm  that  religious  sentiment  is  derived  from  fear 
because  the  savage  experiences  this  emotion  before  his 
fetich,  or  that  conjugal  love  springs  from  sexual  desire 
because  primitive  unions  were,  perhaps,  solely  brutal,  and 
of  a  sensual  selfishness,  is  a  flagrant  violation  of  every 
principle  of  causality  and  of  historical  logic.  An  object 
which  excited  fear  may  later  excite  emotions  that  are  very 
different  in  their  characteristics  and  their  origin;  and  to 
make  these  last  spring  from  the  first  is  an  error  almost 


§4]          PSYCHOLOGICAL  EMBRYOLOGY         205 

akin  to  connecting  by  ties  of  relationship  all  those  who 
have  lived  in  the  same  house. 

§  4.  Psychological  Embryology.  In  order  to  construct 
historical  psychology,  we  must  discover  the  simple,  the 
invariant,  that  which  has  not  become  changed  in  the  hu- 
man brain  through  contact  with  civilization.  Since  the 
rational  simplification  of  modern  man  can  only  lead  us 
into  error,  observation  of  simple  beings  is  the  sole  method 
which  can  furnish  a  basis  for  our  study.  Four  kinds  of 
simple  beings  may  reproduce  to  a  greater  or  less  extent 
the  original  elements  of  psychology;  namely,  primitive 
people,  savages,  children,  and  animals. 

(a)  Primitive  men,  our  ancestors  of  the  prehistoric  ages 
of  cut,  of  polished  stone  and  of  bronze,  would  furnish  a 
certain  starting  point  if  we  could  succeed  in  understanding 
them.     Unfortunately,  we  cannot  do  so.     Without  doubt, 
paleoethnography  furnishes  valuable  information  upon 
their  manner  of  life,  their  industries  and,  indirectly,  upon 
some  of  their  traits  of  character.     They  lived  in  rather 
small  groups,  fought  among  themselves,  and  loved  finery. 
But  it  is  a  far  cry  from  this  to  understanding  the  mechan- 
ism of  their  thoughts  and  their  emotions.     Nevertheless, 
the  information  furnished  by  this  science  is  not  to  be 
neglected,  as  it  provides  us  with  a  valuable  means  of 
checking  up  our  investigations. 

(b)  Savages  are  perhaps  very  similar  to  the  ancestors 
of  superior  races.     According  to  a  very  plausible  theory, 
they  are  backward  people,  who  traverse  the  same  road  but 
with  a  certain  slowness.     They  are  therefore  no  longer, 
properly  speaking,  primitive.     They  have  a  political  and 
an  economic  history,  rudimentary,  to  be  sure,  but  none 
the  less  real.     While  admitting  that  certain  of  them  have 
undergone  only  the  slightest  variations,  the  fact  of  their 
having  remained  in  a  state  of  inferiority  for  a  much  longer 
period  than  others  suffices  to  show  that  their  psychology 
is  not  the  same.     Moreover,  everybody  has  not  a  savage 


206  JURAL  PSYCHOLOGY  [Cn.VI 

at  his  disposal.  The  labor  of  the  ethnologists  has  no 
doubt  been  vast ;  its  results  have  been  rich  in  information 
upon  the  customs,  the  institutions,  the  religion  and  the 
aesthetics  of  the  savage.  From  the  psychological  point 
of  view  we  can  derive  much  less  from  it;  its  conclusions 
are  less  reliable  and  difficult  to  control. 

(c)  The  child  is  a  primitive  being,  an  organism  which 
only  by  degrees  assumes  connection  with  its  social  and 
material  environment.     Its  brain,  void  of  experience  in 
the  beginning,  will  be,  in  a  relatively  small  number  of 
years,  transformed  into  that  of  the  social  and  modern  man. 
It  passes  from  the  simplest  to  the  most  complex  psy- 
chology with  the  degree  of  swiftness  which  best  lends  it- 
self to  our  observations.     To  know  the  instinctive  method 
of  a  being  before  education  has  led  it  into  the  general  and 
social  forms  of  thinking,  is  a  valuable  thing  no  doubt. 
But  children  are  neither  primitive  nor  savages,  but  the 
descendants  of  civilized  persons.     Before  they  are  edu- 
cated, when  they  are  still  only  the  products  of  remark- 
ably varied  hereditary  combinations,  their  logical  and  their 
sentimental  predispositions  are  remarkably  odd,  complex, 
peculiar  and  of  little  uniformity.     When  savants  like 
Darwin  or  Preyer  who  have  had  something  else  to  do  in 
life  besides  taking  care  of  children,  affirm  that  fear,  anger 
and  affection  are  manifested  so  many  months  or  days  after 
birth,  we  can  only  smile  at  such  observations. 

(d)  The  study  of  the  thought  of  animals  (zoological 
psychology)  is  the  most  valuable  of  the  four  sciences  which 
we  are  examining  with  a  view  to  fixing  the  foundations 
of  the  intellectual  history  of  the  human  race.     It  is  not 
that  the  animal  is  more  like  primitive  man  in  character 
than  is  the  child  or  the  savage.     If  it  were  a  question  of 
making  a  portrait  of  the  virtues  and  the  vices  of  our  an- 
cestors, of  divining  their  ways  of  acting  and  their  manner 
of  life,  the  observation  of  animals  would  not  be  of  any 
great  value;  for  we  should  not  know  to  what  type  they 


§  5  ]  CHARACTERISTICS  207 

should  be  compared.  To  the  monkey  perhaps,  because 
of  the  resemblance  in  conformation?  But  this  is  an 
animal  relatively  very  inferior  from  the  point  of  view  of 
psychology;  and,  moreover,  species  which  are  very  much 
akin  as  far  as  general  conformation  is  concerned,  are 
very  unlike  in  habits.  It  would  be  entirely  arbitrary  to 
affirm  that  primitive  man  lived  like  a  monkey  at  any 
moment  whatever  of  his  history.  Besides,  we  desire 
something  quite  other  than  an  intellectual  and  sentimental 
description  of  a  being  whom  we  have  no  means  of  under- 
standing very  accurately;  we  are  seeking  the  elements  of 
abstract  psychology,  definitions  of  desire,  sentiment  and 
imagination,  applicable  to  the  whole  course  of  human 
history.  And  in  what  concerns  social  psychology,  we 
are  trying  to  discover  the  different  causes  which  arouse 
the  social  spirit  among  animals,  and  the  diverse  effects 
of  community  life.  Comparative  zoology  is,  from  this 
point  of  view,  infinitely  better  supplied  with  material 
than  the  above  mentioned  sciences;  which  does  not  at  all 
mean,  however,  that  they  can  be  entirely  neglected. 

§  5.  Characteristics  of  Juridical  Psychology.  Law  is  a 
psychological  product.  If  we  abandon  the  attempt  to 
study  it  through  psychology,  we  abandon  the  attempt  to 
understand  its  true  nature  in  order  to  content  ourselves 
with  observing  its  various  manifestations.  This  is,  how- 
ever, what  would  have  to  be  done  if  the  first  task  were 
impossible.  What  is  the  good  of  trying  to  explain  what 
cannot  be  explained? 

It  might  be  impossible  to  find  the  psychological  expla- 
nation of  juridical  formations  for  two  reasons;  in  the  first 
place,  if  we  had  no  criterion  by  which  to  distinguish  the 
variable  from  the  invariant  in  the  human  cerebral  mech- 
anism, which,  we  know,  is  not  the  case;  in  the  second 
place,  if  the  law  represented  such  accidental  and  unstable 
phenomena  that  it  was  impossible  to  describe  them  to 
even  the  slightest  extent. 


208  JURAL   PSYCHOLOGY  [Cn.VI 

The  psychological  complexity  of  the  law  is,  indeed,  re- 
markable. In  its  formation  and  its  application,  it  is  some- 
times collective  and  sometimes  individual.  It  is  the 
product  of  a  current  of  opinion  or  of  an  adherence  of  the 
crowd,  which  may  be  spontaneous  or  may  be  incited  by 
one  or  more  individuals.  The  constitution  of  a  people  is 
not  enough  to  make  known  the  true  relationship  between 
the  law  and  collective  psychology.  The  complete  his- 
torical account  of  the  framing  of  each  law  is  still  necessary, 
or,  at  least,  would  be  necessary  for  whoever  would  care 
to  understand  the  psychological  nature  of  each  law. 

Moreover,  that  is  only  a  rather  secondary  difficulty. 
Thought  and  sentiment  which  are  clothed  with  legislative 
authority,  admitted  into  the  juridical  domain,  or  incor- 
porated into  a  text,  no  longer  have  the  same  intellectual 
existence,  and  their  relationship  with  the  originating  phe- 
nomenon may  vary  greatly  at  any  moment  of  juridical 
life.  Thus  the  sentiment  of  pity  is  and  always  has  been  a 
constant  factor  in  modifying  usages  and  laws.  At  the  be- 
ginning of  evolution,  groups  or  individuals  must  feel  really 
stirred  in  order  to  renounce  a  right  acquired  in  their 
behalf  or  penalties  legally  decreed.  The  better  the  law  is 
established,  the  stronger  must  be  the  emotion.  One  devi- 
ation from  the  strict  rule  through  pity,  allows  a  second 
deviation  with  a  lesser  sentimental  impetus.  The  psy- 
chological phenomenon  necessary  to  produce  one  and  the 
same  juridical  effect  continually  decreases  in  intensity 
and  ends  by  becoming  reduced  to  zero.  Strong  compas- 
sion sometimes  prevented  primitive  warriors  from  put- 
ting the  vanquished  to  death,  and  the  unpaid  creditor 
from  tearing  the  insolvent  debtor  to  pieces.  But  the 
leniency  granted  the  first  time  must  have  tended  to  be- 
come general,  and  little  by  little  the  proportions  were  re- 
versed. Only  the  very  hardest-hearted,  those  incapable 
of  any  emotion,  would  pretend  to  exercise  their  rights  in 
their  full  rigor.  One  step  more,  and  the  measure  of  leni- 


§  5  ]  CHARACTERISTICS  200 

ency  was  imposed  generally,  without  having  been  pro- 
duced by  the  psychological  phenomenon  of  pity. 

Consequently,  the  psychological  terms  employed  in 
law  sometimes  have  a  meaning  corresponding  to  their 
original  meaning,  but  very  often  one  which  is  entirely  ar- 
tificial yet  quite  necessary  to  their  new  function.  It  is 
thus  in  regard  to  the  idea  of  "will."  It  is  said  that  the 
law  is  the  will  of  the  nation.  Psychologically  a  nation  has 
no  will,  because  the  nation  is  an  abstraction.  Further- 
more, the  majority  of  the  citizens,  even  if  we  suppose 
them  in  favor  of  the  law,  have  not  performed  an  act  of 
will  in  regard  to  it.  They  can  desire  the  law,  but  they 
cannot  will  it,  since  it  does  not  depend  upon  each  of  them 
but  upon  the  result  of  the  totality.  To  say  that  we  are 
subject  to  texts  which  date  back  a  century  or  more,  by 
virtue  of  the  will  of  living  citizens,  is  a  juridical  truth  but 
a  psychological  absurdity. 

Intestate  succession  rests,  in  large  number  of  legal 
systems,  upon  the  "presumed  will"  of  the  deceased.  In 
reality,  it  is  not  a  will  which  is  presumed,  for  the  deceased 
might  not  have  been  capable  of  having  one,  notably,  if 
he  were  insane.  Assuming  he  was  rational,  he  perhaps 
did  not  think  of  his  succession;  perhaps  he  did,  opened 
his  code,  and  found  that  the  legislature  had  done  its 
work  well  and  that  it  was  useless  for  him  to  make  a  testa- 
ment. In  neither  case,  was  there  anything  which  resem- 
bles an  act  of  will  in  the  psychological  meaning  of  the 
word. 

In  the  making  of  contracts,  the  "will"  of  the  parties 
may  more  nearly  approach  the  philosophical  conception. 
This  is,  however,  far  from  being  a  condition  of  the  con- 
tract. A  person  might  express  orally  or  verbally  the  fact 
that  he  buys  an  object  which  he  does  not  care  to  possess, 
because  he  is  forced  into  doing  it  by  considerations  of  pro- 
priety, without  the  sale's  being  vitiated  in  the  least. 

Thus  the  law  explains,  by  the  "will,"  acts  which  have 


210  JURAL  PSYCHOLOGY  [CH.VI 

been  willed,  those  which  could  have  been  willed,  those 
which  have  not  been  willed,  and  those  which  could  not  have 
been  willed.  And  it  is  not  wrong  in  doing  so,  because  this 
idea  of  will  is  juridically  the  same,  through  the  ideas  of 
liberty,  authority,  and  responsibility  which  it  contains. 
But  it  could  not  be  transported  into  philosophy  without, 
in  each  instance,  submitting  it  to  an  analysis  in  order  to 
determine  to  what  it  corresponds  in  reality. 

Thus  all  intellectual  and  sentimental  ideas  are  capable 
of  being  presented  in  legal  systems  under  their  real  form 
or  under  an  entirely  artificial  form;  and  not  to  be  able  to 
distinguish  between  them  is  very  dangerous  for  the  legal 
philosopher. 

This  fluctuation  in  the  psychological  character  of  insti- 
tutions forms  an  obstacle  to  drawing  inferences  from  the 
law  to  the  morality  of  a  people  or  of  an  epoch.  Cruel 
legal  systems  do  not  necessarily  imply  cruelty,  nor 
humane  systems,  kindness  and  benevolence.  A  nation 
of  logicians  may  have  an  incoherent  law;  another  people 
less  profound  and  less  analytical  may  have  laws  methodi- 
cally arranged. 

From  the  complex,  which  is  the  law,  we  cannot  infer 
the  simple,  which  is  psychology.  Because  of  this  it  is 
only  the  more  important,  the  more  indispensable,  to  have 
recourse  to  the  science  of  thought  to  study  this  world  of 
realities  and  appearances  which  constitutes  juridical 
thought. 

BIBLIOGRAPHY 

J.  KOHLER,  in  HELMOLT'S  Weltgeschichte,  I;  Lehrbuch  des 
burgerlichen  Rechts,  I,  chap.  I,  p.  231;  HERBART,  Analytische 
Bedeutung  des  Naturrechts  und  der  Moral,  Ueber  einige  Beziehungen 
zwischen  Psychologic  u.  Staatswissenschaf t ;  BONUCCI,  De  1'orien- 
tazione  psicologica  dell'  Etica  et  della  Filosofia  del  Diritto  (1907); 
SCHMEIDLER,  Ueber  Begriffsbildung  und  Werturteile  in  der  Ge- 
schichte,  Annalen  der  Naturphilosophie,  III,  24. 

LAMPRECHT,  Vorwort  zur  Deutschen  Geschichte,  3°  Auflage; 
HORWICZ,  Psychologische  Analysen  auf  psycholog.  Grundlage; 


§5]  CHARACTERISTICS  211 

STERNBERG,  Allgemeine  Rechtslehre;  JHERING,  Der  Zweck  im  Recht, 
vol.  II;  SCHMOLLER,  Principes  d'economie  politique  (Introduction); 
BAGEHOT,  Physics  and  Politics;  LETOURNEAU,  La  sociologie  d'apres 
1'ethnographie,  L'evolution  de  la  propriete. 

ROMANES,  L'evolution  men  tale  chez  l'homme;  SCHURTZ,  Ursprung 
der  Kultur;  SCHNEIDER,  Die  Naturvolker,  Missverstandnisse, 
etc.;  RICHARD  HILDEBRAND,  Recht  und  Sitte  auf  der  primitiven 
wirtschaftlichen  Kultur  (1907);  COSENTINI,  La  sociologie  genetique; 
see  also  Bibliography  of  this  Work;  WODON,  Sur  quelques  erreurs 
de  me'thode  dans  1'etude  de  rhomme  primitif,  Inst.  Sollvay  Memoires, 
IV,  pp.  16,  18. 

GUIDO  VILLA,  La  psicologia  contemporanea,  chap.  VI;  PREYER, 
L'ame  de  1'enfant;  BALDWIN,  Mental  Development  in  the  Child  and 
the  Race;  RUYSSEN,  Essai  sur  1'evolution  psychologique  du  jupe- 
ment,  p.  67;  STAMMLER,  Die  Lehre  von  dem  richt.  Recht,  p.  125; 
SALEILLES,  De  la  declaration  de  volonte;  MEYNIAL,  La  declaration 
de  volonte^  in  Revue  trim,  de  Droit  civil  (1st  year),  p.  545. 


CHAPTER  VII 
LAW  AND  EMOTIONAL  LIFE 

§  1.  SPECIAL  INDIVIDUAL  SENTIMENTS  IN  THE  LAW:  (1)  ROLE 
IN  CREATION  OP  LAW;  (2)  R&LE  IN  INTERPRETATION  OF  LAWS  OP 
THE  PRESENT;  MODERN  SOCIALISM;  (3)  ROLE  IN  INTERPRETA- 
TION OF  LAWS  OF  THE  PAST.  — §2.  GENERAL  AND  SOCIAL  SENTI- 
MENTS IN  THE  LAW:  (1)  EMOTIONS  OF  SOCIAL  SYMPATHY; 
(2)  EMOTIONS  OF  SOCIAL  SANCTION;  (3)  EMOTIONS  OF  SOCIAL 
DISTRACTION;  (4)  EMOTIONS  OF  SOCIAL  CONTACT;  (5)  PURELY 
MORAL  AND  JURIDICAL  EMOTIONS;  (6)  POLITICAL  AND  UTILI- 
TARIAN EMOTIONS.  — §3.  INFLUENCE  OF  SENTIMENT  UPON  THE 
LAW:  (1)  CONFLICT  BETWEEN  THE  PRACTICAL  AND  THE  SENTI- 
MENTAL; (2)  LEGISLATIVE  AND  JURIDICAL  LABOR  SENTIMENTAL 
IN  FORM  AS  WELL  AS  IN  SUBSTANCE. 

§  1.  Special  and  Individual  Sentiments  in  the  Law.  To 
nearly  every  provision  of  the  law  there  corresponds  a 
sentimental  state  which  seems  to  be  its  explanation.  Le- 
gal marriage  protects,  and  at  the  same  time  limits,  the 
sentiment  of  love;  divorce  is  a  remedy  for  an  abnormal 
emotional  state.  Property  is  justified  by  the  attachment 
which  people  feel  for  land,  houses,  animals  and  objects  to 
which  they  have  become  accustomed.  And  as  civilized 
man  is  not  without  interest  in  the  future  of  persons  and 
things  which  survive  him,  liberty  in  regard  to  the  making 
of  wills  and  testaments  seems  to  have  for  its  principal 
reason  the  guaranteeing  to  him  of  this  satisfaction. 

It  is  quite  certain  that  when  the  law  is  in  accord  with 
the  general  sentiment  of  the  people,  they  feel  no  need  to 
change  it.  They  may,  however,  be  constrained  to  do  so 
by  foreign  ideas  which  current  opinion  imposes  upon 
them,  or  by  some  other  external  force.  If  institutions  are 
not  in  harmony  with  the  character  of  a  nation,  it  tries  to 
get  rid  of  them;  but  for  that  to  be  possible,  the  amount  of 

212 


§1]  SENTIMENTS  IN  THE  LAW  213 

personal  initiative  required  must  not  be  too  great,  since 
very  often  and  for  many  different  reasons  people  become 
resigned,  and  if  the  shoe  does  not  fit  the  foot,  they  make 
the  foot  fit  the  shoe.  Thus  the  agreement  between  a 
juridical  provision  and  the  general  emotional  tendencies 
is  a  conservative  force  which  is  assured  of  a  long  exist- 
ence, provided  that  some  force  of  innovation  is  not  more 
effective.  Peoples  as  individuals  do  not  always  regulate 
their  lives  according  to  their  taste.  They  do  so,  no  doubt, 
when  nothing  prevents  them,  but  many  things  can  pre- 
vent. 

1:  ROLE  IN  CREATION  OF  THE  LAW.  It  is,  indeed,  a 
relatively  easy  matter  to  explain  why  any  particular  in- 
stitution favors  or  protects  a  particular  sentiment.  It  is 
much  more  difficult  to  determine  the  role  of  the  emotions 
in  the  creation  of  the  law. 

(1)  In  the  first  place,  reformers  very  often  intend  to 
give  pleasure  to  the  whole  or  a  part  of  the  general  public, 
but  more  often  still  they  mean  to  be  disagreeable.  The 
legal  history  of  certain  countries  would  be  meaningless 
if  those  laws  were  suppressed  whose  sole  "raison  d'etre" 
was  to  torment  one's  neighbor.  These  laws  are  emotional 
since  they  spring  from  the  rather  singular  but  unques- 
tionable pleasure  that  man  experiences  in  annoying  his 
fellow-man.  With  the  aid  of  political  history,  laws  of 
such  origin  are  generally  easy  to  recognize.  Moreover, 
they  rarely  attain  their  aim,  or  do  so  only  temporarily. 
Thus  the  French  laws  of  expropriation  for  public  purposes 
and  for  straightening  streets,  were  invented  to  cause  an- 
noyance to  and  inflict  damage  upon  one  class  of  citizens. 
Nothing  justified  them  at  the  time  they  were  made;  they 
were  in  certain  respects  laws  of  spoliation.  But  they 
were  justified  afterwards  by  the  great  works  of  public  in- 
terest, which  could  not  have  been  foreseen.  Compared 
with  the  legislation  of  other  countries  in  the  same  mat- 
ters, the  laws  are  seen  to  be  quite  liberal  and  protective 


214  LAW  AND  EMOTIONAL  LIFE     [Cn.  VII 

of  private  interests.  So  that  dispositions  malicious  and 
annoying  in  their  origin  are  capable  of  becoming,  under 
certain  circumstances,  both  acceptable  and  useful.  Those 
who  think  that  the  legislator  from  their  district  is  trying 
to  make  laws  prejudicial  to  them,  are  wise  if  they  remain 
quiet  and  refrain  from  stirring  up  any  bad  feeling.  The 
law  rarely  succeeds  in  reaching  those  at  whom  it  aims, 
and,  on  the  other  hand,  there  is  no  pleasure  in  annoying 
those  who  do  not  fly  into  a  temper  or  complain. 

(2)  In  the  second  place,  we  may  look  upon  the  legisla- 
tor as  the  spokesman  of  a  definitely  determined  sentiment 
which  demands  a  law  to  defend  itself  or  to  attack  an  ad- 
verse sentiment.  Every  time  that  we  are  gratified  or  in- 
convenienced in  any  way,  we  do  not  mention  the  fact  to 
our  deputy.  A  few,  however,  cannot  refrain  from  writing 
to  their  newspaper;  the  newspaper  publishes  the  letter,  an 
article  is  written  upon  it,  popular  impressions  are  gathered 
and  a  press-campaign  is  set  in  motion ;  then  the  legislative 
organs  are  called  into  service  and  the  sentimental  objec- 
tion is  subjected  to  its  first  serious  examination.  It  is  ex- 
amined (a)  from  the  psychological  point  of  view:  is  the 
sentiment  real,  deep-seated  and  legitimate?  (b)  From 
the  utilitarian  point ;  would  it  not  be  dangerous  to  satisfy 
it?  (c)  From  the  legal  point  of  view;  does  it  not  claim 
from  the  law  a  special  privilege  or  only  equality  with 
other  sentiments?  (d)  From  the  juridical  point  of  view; 
is  there  a  juridical  form  which  might  be  favorable  to  it, 
or  more  than  favorable?  After  such  an  examination,  a 
rough  draft  of  the  law  will  be  drawn  up,  and  it  will  or  will 
not  be  voted  upon.  Texts  which  deal  with  municipal 
questions  furnish  examples  of  numerous  sentiments  lately 
admitted  to  the  juridical  life. 

The  modern  (legislative)  mechanism  is  evidently  ap- 
plicable only  to  certain  countries  in  our  time.  It  has 
often  been  more  difficult  for  individual  sentiment  to  be 
admitted  into  the  law.  For  this  to  be  effected  it  was  al- 


$1]  SENTIMENTS  IN  THE  LAW  215 

ways  necessary  for  the  sentiment  to  manifest  itself,  then 
to  become  formulated,  and  lastly  to  be  adopted.  Accord- 
ing to  the  country  and  the  constitution,  each  of  the  three 
stages  may  be  surmounted  with  more  or  less  difficulty. 
The  most  violent  sentiments  are  not  always  those  which 
are  the  most  successful.  Some  very  worthy  in  them- 
selves might  conflict  with  the  general  indifference  or  might 
not  be  flexible  enough  to  adapt  themselves  to  juridical 
form.  Others,  more  artificial,  will  have  no  difficulty  in 
succeeding.  Sincere  sentiments  must  sometimes  make 
concessions,  must  buy  the  concurrence  of  those  who  do 
not  share  them  by  the  promise  of  material  or  moral  re- 
muneration. Thus  the  sentiment  never  wholly  explains 
the  institution. 

2:  ROLE  IN  INTERPRETATION  OF  LAWS  OF  THE  PRES- 
ENT. MODERN  SOCIALISM.  Unusual  discretion  must  be 
used  in  the  emotional  interpretation  of  laws.  The  phe- 
nomena which  we  encounter  there  often  appear,  at  first 
sight,  very  peculiar  and  of  a  nature  to  baffle  those  who 
would  like  to  see  in  a  text  the  photograph  of  an  emotion. 
Take  the  juridico-sentimental  phenomenon  which  we  may 
observe  with  the  greatest  safety  —  that  of  modern  social- 
ism. It  comprises  a  theory  of  organization,  which  is  ra- 
tionally open  to  criticism  by  the  science  of  economics, 
and  a  sentimental  conception,  acceptable  or  unacceptable 
according  to  one's  temperament.  This  conception  may 
be  analyzed  thus: 

(1)  Indifference  to  the  peculiar  characteristics  of  things 
which  no  longer  have  any  individual  value  but  are  fungi- 
ble.    One  no  longer  loves  any  special  field  or  house,  but 
a  field  or  a  house  of  a  certain  value. 

(2)  Detachment  from  human  individualities;  substitu- 
tion of  general  sympathy  for  individual  sentiments. 

(3)  Desire  of  security,  and  regularity  of  life,  with  the 
least  effort  of  initiative.     Atrophy  of  desires  which  do  not 
result  from  the  necessities  of  everyday  life. 


216  LAW  AND  EMOTIONAL  LIFE     [Cn.vii 

Historically  the  causes  that  have  produced  this  social- 
istic sentimentality  are  many  and  various.  International 
politics  has  brought  into  the  foreground  peoples  who  do 
not  as  yet  recognize  individualist  sentiments ;  great  indus- 
tries prevent  the  lower  classes  from  owning  property;  the 
development  of  transferable  securities  has  transformed 
the  psychology  of  the  upper  classes  who  find  their  well- 
being  in  the  use  of  objects  which  pass  from  hand  to  hand ; 
life  in  the  world,  as  it  has  become  constituted  in  the  nine- 
teenth century  by  class-combination,  centralization  and 
cosmopolitanism,  is  an  active  cause  of  sentimental  fungi- 
bility.  When  we  are  accustomed  to  chopping  up  our 
lives  in  conversation  with  people  who  are  constantly 
changing,  we  can  hardly  be  capable  of  any  great  affection 
for  anyone.  The  socialist  dreams  of  transforming  gold 
into  penny  pieces  for  the  benefit  of  the  crowd;  thus  the 
worldling  transforms  his  sentiment  into  money  of  base 
coinage.  This  is  why  one  is  right  in  saying  that  divorce 
without  just  cause  (adultery)  and  free  love  are  not  in 
themselves  immoral  or  devoid  of  sentiment.  These  are 
only  socialist  ways  of  spending  one's  energies. 

Now  —  and  this  is  what  is  of  interest  to  us  —  among 
those  who  uphold  socialism,  a  rather  large  number  have 
very  pronounced  anti-socialistic  sentiments.  There  are  the 
good  husbands  who  love  their  own  wives  and  not  those 
of  their  neighbors,  their  own  houses  and  not  their  neigh- 
bors', their  own  dogs  and  cats  and  not  the  first  dog  and  cat 
they  meet  in  the  street.  And  among  those  who  oppose 
it,  many  have  no  less  pronounced  pro-socialistic  senti- 
ments ;  they  are  not  attached  to  any  one  piece  of  ground, 
or  to  any  one  town,  house,  or  human  being,  more  than  to 
another.  After  all,  neither  is  in  the  wrong;  but  they 
look  upon  questions  from  the  point  of  view  of  the  social 
organization  which  they  consider  reasonable  or  unreason- 
able, without  concerning  themselves  with  what  best  suits 
their  manner  of  living,  loving  and  feeling.  Thus  the  small 


§1]  SENTIMENTS  IN  THE  LAW  217 

farmer  is  made  to  believe  that  he  will  always  remain 
master  and  lord  of  his  land;  therefore  he  sees  nothing  in- 
convenient in  the  socialization  of  the  property  of  others. 
On  the  other  hand,  very  many  conservatives  preach  and 
organize  socialism  of  manners  as  the  sole  means  of  com- 
bating political  socialism,  without  suspecting  that  the 
first  much  more  than  the  second  is  repugnant  to  the  per- 
son who  has  remained  individualistic  at  heart. 

This  is  an  illustration  of  the  fact  that  in  the  course  of 
history  many  must  have  fought  against  what  was  dear  to 
them  because  they  could  not  distinguish  the  true  charac- 
teristics of  their  adversaries,  and  in  favor  of  what  they 
would  have  detested  had  they  understood  it.  Thus  sen- 
timent is  a  powerful  but  blind  force;  we  see  it  hurl  itself 
against  institutions  and  lay  them  low;  but  against  what 
does  it  direct  its  blows  ?  This  is  very  difficult  to  discover. 

When  an  institution  triumphs,  the  sentiments  which 
correspond  to  it  triumph  also.  If  the  socialistic  organiza- 
tion is  established,  those  who  cling  most  to  their  family, 
and  to  objects  which  belong  to  them,  those  to  whom  the 
individual  niceties  of  persons  and  things  are  most  pre- 
cious, will  be  obliged  to  become  familiar  with  the  great 
tavern  that  is  prophesied  for  the  future  and  will  there 
lose  a  great  part  of  their  present  mentality.  Moreover, 
those  who  are  socialists  in  sentiment  at  the  present  time 
owe  it  to  the  kind  of  life  they  lead,  that  is,  to  institutions 
which  compel  or  induce  their  conformity.  Must  it  be 
said  in  the  final  count  that  the  influence  of  sentiment 
upon  the  law  is  purely  an  illusion  while  that  of  the  law 
upon  sentiment  is  a  reality? 

By  no  means;  if  the  law  can  do  violence  to  sentiments 
and  transform  them,  the  opposite  phenomenon  may  be 
present  quite  as  often.  The  art  of  tyrannizing  consists  in 
making  a  proper  adjustment  between  the  coercive  power 
at  one's  disposal,  and  the  changes  to  be  effected  in  the 
emotions  of  others.  If  there  are  tyrants  in  the  most  lib- 


218  LAW  AND  EMOTIONAL  LIFE     [CH.VII 

eral  legislatures,  it  is  none  the  less  true  that  there  are  lim- 
its to  tyranny  in  the  most  absolute  constitutions,  that  is 
to  say,  if  the  emotional  life  of  a  people  can  be  directed  by 
law,  it  never  completely  accepts  this  direction.  Revolu- 
tions, seditions,  laws  unapplied  or  abrogated  shortly  after 
their  promulgation,  furnish  us  with  numerous  examples 
of  this  truth.  Moreover,  if  the  lawmaker  who  would  un- 
bridle all  human  passions  has  not  yet  been  found,  neither 
does  there  any  longer  exist  the  one  who  would  subdue 
them  completely;  a  fact  which  permits  them  perfect  free- 
dom of  action  in  certain  instances. 

3:  ROLE  IN  INTERPRETATION  OF  LAWS  OF  THE  PAST. 
If  it  is  relatively  difficult  to  calculate  the  individual  sen- 
timental cause  in  present-day  legal  systems,  it  is  certainly 
much  more  so  to  do  the  same  for  those  of  the  past.  Emo- 
tions leave  behind  only  vague  impressions;  by  what  proc- 
esses can  they  be  revivified?  The  old  system  which, 
basing  itself  upon  the  adage,  "Human  nature  does  not 
change,"  applied  to  the  institutions  of  the  past  the  emo- 
tions which  correspond  to  them  at  the  present  time,  has 
almost  or  completely  disappeared  from  every  serious  work. 
There  are  other  processes  of  reestablishment  that  are 
wiser  and  apparently  more  positive;  but  these  also  are 
open  to  criticism  in  certain  respects.  Such  is  Jhering's 
method  which  makes  selfishness  the  source  of  all  human 
sentimentality.  To  display  little  optimism  in  regard  to 
the  moral  worth  and  delicacy  of  feeling  of  primitive  man, 
appears  legitimate  enough  in  principle.  But  more  gener- 
osity upon  the  intellectual  side  is  necessary.  Now  Jher- 
ing's primitive  man  is  a  perfect  egoist,  but  one  who  yields 
nothing  to  the  most  intelligent  member  of  any  modern  so- 
ciety. It  may  even  be  said  that  he  is  much  more  intelli- 
gent. To  have  understood  by  himself  all  that  this  ap- 
parently uncultivated  soil  of  egoism  can  yield  through 
cultivation  by  the  scarcely  natural  processes  of  sacrifice 
and  abnegation,  would  have  required  genius.  For  a  brute 


§1]  SENTIMENTS  IN  THE  LAW  219 

to  understand  how  it  is  to  its  interest  to  be  good,  it  would 
have  to  possess  very  superior  intelligence.  Now  it  ap- 
pears, on  the  contrary,  physiologically  and  historically  es- 
tablished that  intellectual  power  is  a  more  recent  acquisi- 
tion than  sentimental  value.  In  every  instance,  primitive 
sentimentality  must  be  developed  with  the  primitive  in- 
telligence and  not  with  the  intelligence  of  civilized  man. 
Otherwise  the  history  of  human  psychology  is  indeed 
falsified. 

Altruism  is  therefore  not  descended  historically  from 
carefully  planned  selfishness,  but  has  its  own  life  and  its 
particular  causes  of  development. 

It  is  therefore  dangerous  to  invent  for  the  emotional 
life  of  man  too  simple  an  origin  and  transitions  which 
lead  too  smoothly  without  shock  or  collision  from  sav- 
agery to  the  most  exalted  ideal.  Here,  as  elsewhere,  prob- 
ability is  the  most  seductive  and  treacherous  of  the  snares 
spread  for  historical  logic.  It  seemed  very  probable  to 
the  ancient  historians  that  even  our  most  remote  ances- 
tors felt  what  we  feel;  on  the  other  hand,  it  appears  very 
probable  to  minds  imbued  with  evolutionism  that  what 
they  consider  imperfect  preceded  what  they  consider  per- 
fect. The  two  conceptions  are  nearly  equally  subjective 
and  we  cannot  but  be  distrustful  of  them. 

The  emotional  life  of  any  age  can  only  be  reestablished 
by  the  aid  of  contemporaneous  documents  of  that  age. 
Studies  of  manners  through  literature  or  any  other  source 
may  clarify  the  sentimental  import  of  an  institution. 
The  historian-jurist  no  longer  disengages  psychology  from 
the  juridical  text  in  order  to  relate  it  back  to  the  same 
text.  He  prefers  to  seek  his  psychological  information 
elsewhere.  Thus  Meynial  studied  ' '  Mariage  apres  les  inva- 
sions" by  reconstructing  according  to  the  "Niebelungen," 
the  emotional  character  of  the  German  woman.  Flach  in- 
terprets the  institutions  of  the  Middle  Ages  through  the 
"  Chansons  de  geste. "  Generosity,  liberality,  is  one  of  the 


220  LAW  AND  EMOTIONAL  LIFE     [CH.VII 

virtues  which  is  there  glorified  most  highly.  Without 
these  impulses  toward  bountiful  giving,  sometimes  prodi- 
gal, which  were,  moreover,  often  followed  by  regret,  the 
multiplicity  and  even  the  nature  of  feudal  concessions,  as 
well  as  of  donations  to  the  church  and  to  monasteries, 
and  many  other  institutions  would  be  inexplicable.  In 
feudal  contracts  each  party  sought  his  own  advantage  no 
doubt,  but  how  different  from  the  psychology  of  modern 
bargaining  where  clause  by  clause  is  discussed  and  each 
side  strives  to  obtain  a  maximum  of  profit.  Finally,  Le- 
febvre's  explanation  of  the  origin  of  conjugal  community 
according  to  sentiment  likewise  appears  partially  true.  Of 
course,  if  the  wife  had  brought  nothing  to  the  husband,  if 
the  partition  at  the  end  of  the  community  had  not  sim- 
plified from  the  beginning  the  adjustment  of  the  conjugal 
life,  and  if  it  had  not  resulted  on  the  whole  in  an  equitable 
division  of  the  common  property,  this  system  would  not 
have  been  adopted;  since  its  only  advantage  over  the 
former  system  of  the  rights  of  survivorship  is  in  favor  of 
the  family  of  the  wife  and  not  of  the  wife  herself.  But  it 
is  very  probable  that  in  accordance  with  the  idea  of  col- 
laboration, with  the  Christian  desire  of  making  the  con- 
jugal tie  more  intimate  by  the  fusion  of  the  interests  of 
the  husband  and  wife,  this  system  was  better  suited  than 
any  other  to  the  emotional  state  of  that  period.  The 
most  recent  historians  of  the  law  are  inclined,  therefore, 
to  take  into  account  the  individual  sentimental  factor  in 
their  interpretation  of  the  juridical  past.  They  exercise 
due  moderation  and  discretion,  while  realizing  at  the  same 
time  that  such  a  recognition  is  indispensable  to  the  com- 
plete understanding  of  the  creation  of  the  law. 

§  2.  General  and  Social  Sentiments  in  the  Law.  The 
sentiments  we  have  just  studied  are  at  once  individual 
and  special.  These  are  more  properly  tendencies  of  man 
to  retire  within  himself,  and  to  follow  his  own  impulses, 
which  the  law  admits  and  protects  in  certain  cases.  They 


§2]  SENTIMENTS  IN  THE   LAW  221 

require  only  a  special  institution,  a  part  of  the  juridical 
domain.  Each  has  its  own  province,  more  or  less  extended, 
from  which  it  does  not  seek  to  deviate,  nor  can  it  claim 
to  inspire  an  entire  system  of  morality  or  of  legislation. 
Conjugal  or  filial  love  has  nothing  to  do  with  delimitation 
of  a  field. 

But  the  emotional  life  further  comprises  general  and 
social  elements.  They  are  social  for  various  reasons: 
Some  arise  in  groups  through  collective  disturbance;  iso- 
lated man  could  not  have  experienced  such  emotions  with 
this  degree  of  intensity.  Others  are  moral  satisfactions  or 
penalties  with  which  society  rewards  the  individual,  the 
emotional  wages  with  which  social  labor  is  recompensed, 
or  the  emotional  pain  with  which  disorder  is  punished.  A 
third  category  of  social  'sentiments  express  the  pleasure 
and  recreation  which  society  holds  for  the  individual.  A 
fourth  comprises  emotions  sprung  from  contact  no  longer 
with  society  itself  but  with  the  human  beings  which  com- 
pose it.  Finally,  the  abstract  principles  that  govern  soci- 
ety —  justice,  right,  etc.  —  may  be  manifested  by  phenom- 
ena which  are  more  emotional  than  rational. 

So  that  it  is  allowable  to  establish  the  following  classi- 
fication: 

1 :  Emotions  of  Social  Sympathy. 

2:  Emotions  of  Social  Sanction. 

3 :  Emotions  of  Social  Diversion. 

4:  Emotions  of  Social  Contact. 

5:  Emotions  Purely  Moral  and  Juridical. 

6:  Political  and  Utilitarian  Emotions. 

We  do  not  claim  that  such  a  classification  is  complete 
and  definitive.  It  permits,  however,  of  a  perhaps  little 
more  accurate  analysis  than  has  hitherto  been  made  of 
the  emotional  life  as  affected  by  society. 

Furthermore,  it  is  not  purely  arbitrary.  Each  of  these 
classes  of  emotions  is  general,  in  that  through  them  the 


222  LAW  AND  EMOTIONAL  LIFE     [CH.VII 

majority  may  serve  to  establish  a  complete  system  of 
morality  and  may  accordingly  influence  all  the  juridical 
dispositions  of  a  legal  system.  Codes  of  practical  morality, 
those  which  apply  to  everyday  life  and  maintain  order  in 
modern  societies,  are  formed  of  superimposed  strata  of 
these  various  systems  that  neither  prohibit  nor  encourage 
the  same  acts,  neither  answer  to  the  same  formulas  nor 
influence  the  same  brains.  This  is  why  all  codes  of  theo- 
retical morality  fail  pitifully  in  their  attempt  to  base 
upon  a  single  principle  that  which  by  virtue  of  the  diver- 
sity of  the  organisms  is  essentially  multiple. 

It  has  often  happened  in  the  course  of  history  that 
disaster  has  followed  in  the  footsteps  of  those  who  have 
longed  to  do  most  for  the  world,  —  who  have  brought  to 
it  the  highest  and  most  disinterested  morality,  and  have 
tried  to  elevate  human  ideals,  but  failed  because  they 
wished  to  substitute  completely  their  own  principles  for 
those  which  had  hitherto  guided  humanity.  They  have 
often  disturbed  living,  emotional  morality  in  favor  of  the- 
ories which  remained,  for  the  majority,  both  artificial  and 
almost  entirely  ineffective. 

1:  EMOTIONS  OF  SOCIAL  SYMPATHY.  Deflecting  the 
word  "sympathy"  from  its  usual  meaning,  we  apply  this 
term  to  impressions  which  seize  an  individual  because  he 
is,  or  has  been  in  a  group,  or  a  crowd.  A  spectacular  dis- 
play might  have  left  him  indifferent,  and  an  act  might 
have  excited  neither  his  admiration  nor  his  indignation. 
Any  attempt  to  point  out  his  duty  to  him  would  have 
been  in  vain;  he  would  have  remained  impervious  to 
every  individual  explanation.  But  he  has  seen  the  crowd 
acclaim  heroes  and  decry  criminals,  and  has  himself  made 
the  same  outcries  and  gestures  before  he  knew  exactly 
why.  Thus  has  he  comprehended  good  and  evil  for  the 
first  time. 

And  this  has  not  been  for  him  simply  practical  and 
positive  information;  it  has  been  true  emotional  educa- 


§2]  SENTIMENTS   IN  THE   LAW  223 

tion.  The  crowd  has  taught  him  to  shudder  with  horror 
before  the  acts  which  it  blames,  and  to  wax  enthusiastic 
over  those  it  admires.  It  has  instituted  the  earliest  form 
of  his  emotional  life. 

The  intensity  which  the  emotions  are  capable  of  ac- 
quiring in  crowds  has  been  an  established  fact  for  a  long 
time.  But  whence  springs  this  contagion  of  fear,  anger, 
or  enthusiasm  which  produces  panics,  riots  and  lynchings? 
Is  it  of  rational  or  of  purely  emotional  origin?  Are  col- 
lectivities emotional  because  they  are  credulous,  or  credu- 
lous because  they  are  emotional?  A  crowd  rushes  upon 
an  individual  suspected  of  a  crime  and  tears  him  to  pieces 
without  proof  of  his  guilt.  Is  the  fury  on  the  part  of  the 
crowd  explained  by  the  extraordinary  strength  of  its  con- 
viction or,  did  it,  on  the  contrary,  allow  itself  to  become 
more  easily  convinced  because  it  was  the  more  furious? 
Both  are  true  up  to  a  certain  point;  there  may  be  con- 
tagion of  emotion  without  congagion  of  belief,  and  con- 
tagion of  belief  without  contagion  of  emotion.  Which 
proves  that  collectivities,  like  individuals,  have  an  emo- 
tional and  intellectual  life  which  may  remain  inde- 
pendent of  each  other  or  be  united. 

Emotions  of  social  sympathy  occur  in  the  course  of  his- 
tory under  a  religious  and  under  a  secular  form. 

(1)  Religious  Form.  Every  religion  is  a  system  of  rites, 
of  beliefs  and  of  sentiments.  But  dogmas  survive  in  texts, 
and  vanished  cults  are  reestablished  in  detail  by  archaeol- 
ogy; it  is  much  more  difficult  to  discover  the  sentiment. 
In  the  history  of  religions,  the  sentimental  side  is  neces- 
sarily sacrificed,  and  especially  in  the  most  profound  and 
most  positive  works,  will  the  emotional  element  be  pro- 
portionally of  small  importance.  We  can  believe  that  the 
Carthaginians  treasured  a  precious  veil,  the  Zaimph,  the 
loss  of  which  presaged  a  public  calamity,  and  that  Hamil- 
car  kept  snakes  and  considered  them  the  family  genii. 
But  even  admitting  the  truth  of  Flaubert's  narrative, 


224  LAW  AND  EMOTIONAL  LIFE      [CH.VII 

what  were  the  religious  impressions  of  Salammbd?  We 
can  learn  nothing  of  this  from  any  source  whatever. 

It  can  be  affirmed,  however,  that  there  were  religious 
emotions,  for  the  cult  and  even  the  beliefs  are  inexplic- 
able without  them.  Man  conceived  his  first  divinities 
under  the  influence  of  fear,  and  probably  of  a  collective 
fear  which  seized  the  whole  of  a  tribe  in  the  presence  of 
natural  phenomena  incomprehensible  to  them.  Under 
this  impression  were  instituted  the  earliest  cults  which 
were  designed  to  appease  the  gods  and  render  them  fa- 
vorable. 

But  the  rite  itself  is  productive  of  new  emotions.  The 
people  meet  together  and  proceed  to  the  altar  in  larger  or 
smaller  groups;  and  the  ceremonies  performed  there  are 
nearly  always  of  a  nature  to  heighten  individual  sensibil- 
ity. For  instance  they  exalt  or  implore  the  gods,  enumer- 
ate their  qualities  of  power  and  beneficence,  and  chant 
the  most  exalted  attributes  ascribed  to  them  by  the 
myths.  No  doubt,  such  prayers  have  a  practical,  selfish 
aim,  and  are  flatteries  which  cannot  be  sincere  in  all 
mouths;  but  the  masses  do  not  remain  insensible.  The 
gods  appear  to  them  in  all  the  grandeur  which  is  attrib- 
uted to  them.  On  the  other  hand,  the  suppliant  dwells 
upon  his  own  insignificance  and  unhappiness  in  order  to 
attain  what  he  prays  for,  and  is  himself  moved  by  his 
own  supplications,  and  feels  that  he  is  nothing  in  the 
presence  of  the  celestial  powers.  Thus  collective  exalta- 
tion in  the  enumeration  of  divine  qualities,  and  collective 
abasement  in  the  enumeration  of  human  weaknesses,  are 
the  most  widespread  religious  emotions. 

It  is  very  probable  that  in  a  primitive  age  emotion  is 
not  willed.  It  is  an  accident  which  takes  by  surprise 
those  who  are  affected  by  it.  There  is  seen  in  it  a  proof 
of  the  efficacy  of  prayer,  the  response  of  the  divinity,  and 
the  emotional  element  tends  to  become  more  and  more  an 
essential  element  of  the  religious  act.  The  cult  becomes 


§2]  SENTIMENTS  IN  THE  LAW  225 

intentionally  emotional;  its  deliberate  aim  is  to  influence 
men  at  the  same  time  they  do  the  gods,  and  later  to  effect 
new  changes  by  exciting  among  men  emotions  which  are 
pleasing  to  the  gods. 

Moreover,  these  religious  emotions  produced  somewhat 
by  chance  become  more  and  more  varied  in  nature,  and 
are  not  always  in  accord  with  the  aim  of  the  religion. 
They  provide  ancient  peoples  with  impressive,  aesthetic 
sensations,  the  feeling  of  peace  and  satisfaction  afforded 
by  the  performance  of  religious  duty;  but  they  furnish 
also  a  means  of  collective  approach  to  sensuality  and  cru- 
elty. The  poets  and  artists  of  classic  Greece  and  imperial 
Rome  are  abundantly  satisfied  with  the  ancient  mythol- 
ogy but  not  so  the  philosophers  and  statesmen.  These 
wish  to  remodel  traditions  in  order  to  make  them  pro- 
ductive of  only  sane  and  useful  emotions.  On  the  other 
hand,  the  official  cult  is  not  affecting  enough  for  the  lower 
classes.  Their  more  brutal  temperaments  require  more 
violent  sensations.  They  turn  to  the  orient  rites,  and 
the  worship  of  Isis  becomes  popular. 

Finally,  to  these  indeterminate  ritualistic  emotions,  re- 
ligions that  are  characterized  by  more  feeling,  and  espe- 
cially the  Christian  religion,  oppose  determinate,  obliga- 
tory emotions,  and  adapt  the  form  of  worship  to  their 
production.  The  principal  aim  of  religion  is  therefore  to 
produce  particular  emotional  states.  The  glorification  of 
divine  power,  adoration,  is  a  duty  of  the  heart  and  not  of 
the  lips.  To  every  circumstance  of  life,  to  every  day  of 
the  year,  there  corresponds  a  particular  state  of  the  soul 
in  which  the  faithful  ought,  more  or  less,  to  participate. 
The  Christian  rejoices  in  the  birth  of  Christ  and  in  his 
resurrection,  suffers  in  his  passion  and  in  his  death,  and 
lives  in  the  life  of  the  saint  whose  anniversary  he  cele- 
brates. If  he  has  sinned,  the  loathing  of  his  fault,  com- 
bined with  a  certain  fear  of  hell,  or  more  effectively,  a 
more  perfect  repentance  springing  from  the  love  of  God, 


226  LAW  AND  EMOTIONAL  LIFE     [Cn.Vll 

restores  him  to  his  former  state  of  purity.  Virtues  are  in 
large  part  sentiments;  vices,  emotional  habits  deserving 
condemnation.  The  Christian  religion  is  an  essentially 
emotional  religion,  not  only  because  it  excites  a  consider- 
able number  of  emotions,  but  because  it  does  so  con- 
sciously and  knowingly. 

This  change  in  the  emotional  character  of  religions 
must  be  taken  into  account.  It  is  very  important  for  the 
history  of  legal  philosophy.  In  a  general  way,  legal 
systems  influenced  by  dogma  and  ritualism  are  formal- 
istic;  on  the  other  hand,  those  in  which  sentiment 
predominates  are  psychological  and  subjective.  This 
is,  however,  only  an  approximate  indication  of  their 
nature. 

(2)  Secular  Form.  Side  by  side  with  religious  collective 
emotion,  secular  collective  emotion  is  to  be  found  in  legal 
systems.  It  is  difficult  to  say  which  of  the  two  is  the 
older.  Presumably  they  have  always  coexisted.  What- 
ever the  fear  with  which  primitive  man  regarded  his  de- 
ities, whatever  the  uncertainty  of  the  masses  before  the 
juridical  problems  which  suddenly  presented  themselves, 
it  is  undoubtedly  true  that  the  current  of  collective  im- 
pulse which  originally  occurred  in  religions,  occurred  like- 
wise upon  other  occasions.  In  the  old  criminal  proce- 
dures, the  crowd  intervened  to  take  possession  of  the 
criminal,  even  when  it  did  not  dare  to  pronounce  judg- 
ment. Its  role  in  judiciary  and  political  assemblies  in- 
creased for  centuries  before  it  entered  upon  the  periods  of 
decadence  preceding  our  modern  legal  systems. 

Patriotism  is  a  collective  and  secular  emotion,  although 
in  antiquity,  it  was  based  upon  religion,  and  in  our  time 
depends  upon  personal  reflection.  For  the  ancient  peo- 
ples were  not  patriots  because  they  had  national  gods, 
but  they  had  national  gods  because  they  were  patriots. 
In  our  time,  attachment  to  one's  native  soil  and  to  the 
political  unity  of  a  country  is  justified  by  practical  and 


§2]  SENTIMENTS  IN  THE   LAW  227 

philosophical  considerations;  but  patriotic  ceremonies  ac- 
companied by  hymns,  processions,  and  music,  affect  the 
masses  and  even  cultivated  men  more  deeply  than  does  a 
treatise  upon  the  role  and  the  utility  of  nations.  Whether 
religious  or  secular,  pure  collective  emotion  produces  an 
analogous  form  of  morality;  aversion  towards  acts  pub- 
licly blamed  and  attraction  towards  those  publicly  ad- 
mired. These  personal  impressions,  agreeing  as  they  do 
with  those  of  the  crowd,  possess  an  authority  which  im- 
poses itself  upon  every  individual  intelligence.  They  are 
easily  believed  to  be  general  and  absolute.  To  prove  that 
they  are  accidental  and  relative  is  equivalent  to  depriv- 
ing them  of  a  great  deal  of  their  prestige.  The  famous 
argument  of  natural  law  which  regards  certain  institu- 
tions as  the  essence  of  humanity,  is  the  expression  of  this 
old  morality,  which  nevertheless  still  rules  us  and  can 
never  be  completely  displaced.  It  has  left  quite  distinct 
traces  in  our  psychology ;  notably  the  fear  of  personal  re- 
sponsibility, which  pre-supposes  that  the  individual  left 
to  himself  shrinks  —  and  often  rightly  so  —  from  taking  an 
initiative  which  will  not  perhaps  be  in  accord  with  the 
impressions  of  the  crowd. 

2:  EMOTIONS  OF  SOCIAL  SANCTION.  Social  sympathy 
preserves  its  entire  effect  only  during  assemblies  and  cere- 
monies where  all  the  individuals  vibrate  in  unison.  When 
the  group  is  dissolved,  each  goes  his  way  and  the  impres- 
sion is  gradually  effaced.  The  individual  returns  to  his 
particular  interests;  and  if  his  interests  are  opposed  to  the 
general  interests,  the  remembrances  of  his  past  impres- 
sions would  not  perhaps  suffice  to  maintain  him  in  the 
right  course.  Man  must  have  a  social  guardian  who 
follows  him  into  his  private  life  and  regulates  his  passions. 
By  chance  or  instinct,  religions  and  societies  have  had 
slight  difficulty  in  discovering  this  guardian. 

(l)  Pride  and  Shame.  It  is  the  feeling  of  pride  or  of 
shame,  of  respect  or  of  disrespect,  which,  even  when  they 


228  LAW  AND  EMOTIONAL  LIFE     [CH.VII 

are  not  openly  expressed,  makes  the  approbation  or  cen- 
sure of  public  opinion,  pleasant  or  painful  to  him. 

This  morality  may  be  expressed  thus:  "If  I  steal  and 
it  becomes  known,  I  shall  be  ashamed  and  shame  is  dis- 
agreeable"; or  under  its  religious  formula:  "If  I  steal, 
God  will  know  it  and  I  shall  be  ashamed  before  Him." 
This  last  feeling  is  evidently  more  efficacious;  it  follows 
man  wherever  he  goes  as  the  eye  followed  Cain,  but  it 
presupposes  sound  religious  convictions. 

The  secular  formula  is  not  a  very  reliable  rule  of  con- 
duct. It  does  not  prevent  the  individual  from  doing 
what  he  wishes  to  do,  when  he  is  sure  of  not  being  seen. 
It  does  not  forbid  him  to  do  wrong,  but  —  as  it  is  said  —  to 
allow  himself  to  be  caught.  For  rather  small  homo- 
geneous, centralized  groups,  it  is  a  sufficient  moral  force; 
it  loses  much  of  its  efficacy  among  mixed  peoples  or  those 
scattered  over  a  large  territory.  Also,  in  periods  of  great 
prosperity  or  of  decadence,  social  respect  no  longer  suf- 
fices as  a  moral  guide. 

(2)  Position  of  Moralists  on  this  Point.  Moralists  have 
taken  two  different  positions  in  regard  to  the  feelings  of 
pride  and  shame.  Some  have  wished  to  destroy  them  in 
order  to  substitute  a  higher  and  a  more  complete  and  ra- 
tional morality.  "If  you  wish  to  succeed  in  matters  of 
wisdom,"  said  Epictetus,  "do  not  resent  at  all  being  con- 
sidered a  fool  or  a  madman  with  respect  to  external 
matters."  The  wiser  and  the  more  virtuous  the  person 
following  this  advice,  the  more  violently  will  the  authority 
of  traditional  morality  be  disturbed.  By  defying  public 
opinion  in  order  to  do  good,  he  made  it  less  difficult  to 
defy  public  opinion  in  order  to  do  bad. 

Others  have  attempted  to  transform  the  social  senti- 
ment into  a  subjective  sentiment,  to  make  of  man  the 
spectator  and  judge  of  his  own  acts,  to  make  him  when 
necessary  play  for  himself  alone  the  role  of  the  public 
which  acclaims  or  decries,  and  of  the  individual  who  is 


§2]  SENTIMENTS  IN  THE   LAW  229 

acclaimed  or  decried.  They  have  attempted  to  make 
morality  rest  upon  a  single  basis:  the  esteem  or  lack  of 
esteem  which  springs  from  the  opinions  of  others  or  from 
one's  own  conscience.  The  emotion  which  emanates 
from  "Achtung,"  from  respect,  or  any  other  analogous 
emotion,  may  thus  serve  to  render  the  abstract  principles 
of  duty  living  and  efficient  influences. 

But  these  various  systems  are  in  certain  respects  very 
artificial.  Social  approbation  and  the  approbation  of 
one's  conscience  are  in  reality  not  analogous.  They  do 
not  arouse  emotions  in  the  same  organisms.  Moreover, 
there  are  still  many  other  moral  codes  which  govern  and 
have  governed  the  conduct  of  civilized  peoples. 

3:  EMOTIONS  OF  SOCIAL  DIVERSION.  (1)  Amuse- 
ment through  law  and  politics.  The  desire  to  amuse 
oneself,  the  pleasure  that  one  finds  in  a  game,  is  an  im- 
portant factor  in  the  formation  of  the  law,  for  the  law  is, 
in  certain  respects,  a  plaything  like  any  other.  Man 
amuses  himself  with  everything,  —  with  life  and  with 
death;  it  is  not  at  all  surprising  that  he  asks  diversion 
of  his  juridical  institutions.  Between  institutions,  he 
chooses  the  most  amusing;  he  changes  them  "for  fun," 
and  takes  a  dislike  to  them  simply  through  ennui.  Law 
and  politics  are  the  romance  in  which  each  plays  a  part 
to  a  greater  or  less  extent,  and  which,  all  else  failing, 
creates  for  everyone  an  interest  in  life. 

I  should  never  have  dared,  on  my  own  private  au- 
thority, to  emit  such  a  theory,  if  I  had  not  found  a  sound 
application  of  it  in  an  English  theologian  of  the  eight- 
eenth century,  William  Paley,  archdeacon  of  Carlisle, 
whose  writings  on  moral  and  philosophical  subjects  are 
far  from  being  suspected  of  misanthropy  or  paradox.  He 
is  absolutely  without  irony  when  he  considers  it  one  of 
the  great  virtues  of  parliamentary  rule  that  it  furnishes 
the  greatest  amusement  to  the  greatest  number  of  citi- 
zens. He  is  simply  a  spectator,  but  he  does  not  regret 


230  LAW  AND  EMOTIONAL  LIFE     [Cn.  VII 

the  tax-dues  which  he  pays  to  the  State  and  considers 
that  he  is  largely  remunerated  by  the  narration  of  in- 
trigues, parliamentary  discussions,  and  revolutions. 

They  were  given  to  him  for  his  money;  and,  to  be 
just,  it  must  be  recognized  that,  since  that  time,  many 
parliaments  have  paid  back  in  dramatic  or  grotesque 
emotions  what  they  cost  the  public,  and  perhaps  even 
the  expenditures  made  by  the  State.  The  parliamentary 
regime  is  the  most  amusing.  The  simplest  as  well  as  the 
most  subtle  intellects  find  in  it  some  means  of  entertain- 
ment. The  former  delight  in  the  constant  interruptions, 
fist  fights,  and  insults;  the  latter,  in  the  infinite  variety 
of  political  manoeuvres  and  combinations  to  rule  others. 
The  parliamentary  form  of  government  invaded  the  world 
because  it  was  amusing  and  it  will  be  effective  in  juridical 
elaboration  as  long  as  it  continues  to  be  amusing. 

This  is  not,  moreover,  a  fault,  but  a  virtue.  From  all 
time,  man  has  stood  in  great  need  of  diversion.  For  cen- 
turies the  church  knew  how  to  amuse  the  faithful  by  giving 
to  each  day  of  the  year  its  special  character;  it  knew  how 
to  divert  him  by  the  form  of  worship,  the  sermon,  and  the 
mysteries;  and  that  was  the  time  of  its  greatest  power. 
It  is  by  means  of  amusements,  patron  saint's  day,  ex- 
posures of  criminals  in  ridiculous  attitudes,  and  chari- 
varis, that  communities  have  intensified  their  autonomy 
and  created  for  themselves  a  law  and  a  collective  morality. 
Diversion  is  at  the  base  of  every  corporate  organization. 
Wherever  a  rather  intense  juridical  life  has  been  produced, 
it  is  easy  to  point  out  the  amusement  by  which  the  vigor 
of  this  life  is  maintained. 

Decadent  peoples  are  accused  of  interesting  themselves 
in  frivolities.  Rome  is  reproached  for  its  gladiators, 
Byzantium  for  its  blue  and  green  charioteers.  To  tell 
the  truth,  human  psychology  does  not  vary  much  in  this 
respect.  But,  at  certain  periods,  the  crowd  is  inclined 
either  of  its  own  accord  or  through  the  political  tactics 


§2]  SENTIMENTS  IN  THE   LAW  231 

of  those  in  control  to  seek  its  amusement  outside  of  the 
juridical  domain.  Then  it  treats  frivolous  things  seri- 
ously in  order  to  rest  from  treating  serious  matters  friv- 
olously. The  two  systems,  moreover,  result  in  as  much 
good  as  evil,  and  the  historian  guards  against  moralizing 
on  this  score. 

Furthermore,  emotions  of  social  diversion  are  rather 
complex.  The  same  institutions  are  not  amusing  in  the 
same  way  in  different  ages.  Pleasures  may  be  coarser 
or  more  refined.  The  recreative  element  may  affect 
legislative,  judiciary  or  executive  organs.  It  may  be  one 
with  the  foundation  of  the  law  itself  or  be  applied  only 
to  the  form.  It  deserves  a  special  description  for  each 
moment  of  civilization. 

One  thing  remains  certain,  that  institutions  are  nearly 
always  influenced  by  man's  inclination  to  seek  diversion 
and  that  this  in  itself  is  not  an  evil.  Quite  legitimately, 
the  law  has  furnished,  and  will  furnish  for  a  long  time, 
at  least  as  much  diversion  as  literature  to  the  population 
of  a  country. 

(2)  Imitation.  Imitation  is  likewise  an  emotion  of 
social  diversion.  Properly  speaking,  imitation  is  a  ma- 
terial fact  which  may  have  the  most  diverse  psychological 
causes.  Not  the  exaggerated  importance  accorded  this 
factor  in  sociology  as  a  whole,  but  the  lack  of  analysis  of 
this  conception,  was  perhaps  the  greatest  fault  in  Tarde's 
theory.  A  person  may  imitate  for  many  reasons : — because 
after  due  reflection  and  consideration,  he  feels  assured  that 
he  has  before  him  a  better  model ;  or  because  although  with- 
out any  such  conviction,  he  wishes  to  avoid  personal  re- 
sponsibilities; or  again,  because  through  impulse,  timidity 
or  instinct,  he  does  so  almost  unconsciously.  It  may  also 
be  emotional.  This  is  the  case  when  it  constitutes  not 
a  thought,  but  a  pleasure.  The  act  of  reproducing  the 
gestures,  the  attitudes,  and  the  sound  of  the  voice  of 
another  or  of  seeing  them  reproduced,  can  give,  apart  from 


232  LAW  AND  EMOTIONAL  LIFE     [CH.VII 

any  idea  of  utility,  real  satisfaction.  A  great  many  ani- 
mals like  to  imitate;  and  it  is  one  of  the  great  pleasures 
of  savages;  thanks  to  this  tendency  children  develop,  and 
it  is  far  from  disappearing  with  the  adult  civilized  man. 
To  succeed  in  doing  what  one  has  seen  others  do  gratifies 
one's  "amour  propre,"  and  this  is  more  particularly  true 
when  one  recognizes  —  openly  or  not  —  the  superiority  of 
those  imitated.  (Take  for  example  the  negro  who  wears 
a  high  hat,  or  the  countrywoman  who  goes  to  the  town 
milliner.)  Thus  the  prestige  of  civilization  or  of  power 
has  more  influence  upon  the  spread  of  institutions  than 
has  intellectual  imitation. 

In  these  instances  there  is  really  no  specific  feeling  of 
imitation.  Vanity  explains  the  pleasure  which  one  ex- 
perienced in  making  oneself  like  another.  To  imitate  for 
the  sole  pleasure  of  imitating,  as  does  the  monkey  and  the 
parrot,  is  also  a  human  tendency.  A  successful  imita- 
tion pleases  us,  even  when  it  is  not  our  own.  Admiration 
of  the  talent  of  reproduction  is  the  most  common  aesthetic 
emotion;  it  is  one  of  the  foundations  of  artistic  psychology. 
Can  it  be  found  in  juridical  psychology?  A  politician,  a 
magistrate,  or  a  lawyer  owes  a  part  of  his  authority  to  the 
talent  which  allows  him  to  imitate  a  particular  social 
type.  He  is  all  the  more  admired  when  he  is  known  to 
be  different  in  his  private  life  from  the  (public)  character 
he  represents.  The  pleasure  of  seeing  good  imitations 
maintains  theatres  and  similar  institutions  and  renders 
them  dear  to  the  people,  without  their  suspecting  the 
reason,  while  the  pleasure  of  seeing  mimicry,  caricatures 
and  cartoons  is  perhaps  the  most  energetic  revolutionary 
force. 

But  I  believe  that  for  any  age  whatever,  it  would  be  an 
exaggeration  to  base  the  idea  of  justice  and  of  duty  upon 
such  a  sentiment.  Undoubtedly,  the  law  of  retaliation  is 
an  act  of  imitation.  The  judge  imitates  the  culprit  — 
knocks  out  a  tooth  if  the  offending  party  has  knocked  out 


§2]  SENTIMENTS  IN  THE  LAW  233 

a  tooth,  puts  out  an  eye  if  an  eye  has  been  put  out.  The 
debtor  who  pays  his  debt  imitates  the  gesture  of  the 
creditor  who  paid  him  the  money;  he  imitates  him  very 
closely,  since  in  some  legal  systems  the  formalities  of 
paying  off  one's  debts  are  identical  with  those  of 
contracting  them.  But  it  is  certain  that  these  various 
personages  do  not  act  thus  for  the  pleasure  of  repeating 
the  same  gestures.  They  expect  a  precise  result  from  an 
act  which  is  not  for  them  one  of  imitation,  but  rather 
of  set-off.  They  wish,  not  to  obtain  two  symmetrical 
acts  for  their  personal  satisfaction,  but  to  annul  one  act 
by  another,  to  destroy  the  like  by  the  like.  It  would  not 
be  impossible,  however,  to  discover,  by  descending  a 
step  in  human  logic,  that  the  ultimate  source  of  the  idea 
of  curing  like  by  like  is  man's  primordial  tendency  to 
imitation. 

4.  EMOTIONS  OF  SOCIAL  CONTACT.  (1)  Altruism. 
"Love  thy  neighbor  as  thyself.  Rejoice  in  his  good  for- 
tune and  help  him  to  realize  it.  Suffer  in  his  misfortune, 
go  to  his  rescue."  These  precepts,  which  the  spirit  of 
Christianity  repeats  and  has  repeated  indefinitely,  ex- 
press charity,  altruistic  moral  emotion.  According  to  the 
same  conception,  the  idea  of  justice  is  thus  formulated: 
"Do  not  unto  others  what  you  would  not  have  them 
do  unto  you." 

This  morality  and  this  altruistic  justice  demand  the 
objectivation  of  a  sentiment,  that  is  to  say,  the  act  of 
putting  oneself  in  imagination  in  another's  place  in  order 
to  divine  his  impressions.  This  operation  is  perhaps 
more  difficult  on  its  negative  than  on  its  positive  side.  To 
sympathize  with  others,  it  is  necessary,  in  the  first  place, 
not  to  be  absorbed  in  one's  own  affairs.  If  a  person  is 
no  longer  concerned  with  business,  and  has  neither  joy 
nor  sorrow  of  his  own  to  express,  nor  interest  to  defend, 
he  is  much  more  accessible  to  the  woes  of  others.  Altru- 
istic morality  and  justice  made  their  first  appearance, 


234  LAW  AND  EMOTIONAL  LIFE      [Cn.VII 

very  probably,  under  an  accidental,  an  occasional,  form. 
It  is  those  who  have  been  unoccupied  with  sentiment 
that  have  performed  through  caprice  the  acts  of  gener- 
osity and  of  grandeur  of  soul  which  are  classic  in  history. 
Primitive  altruism  is  accidental. 

It  is  equally  individual.  Certain  beings  by  their 
physique,  their  race,  and  their  conduct  inspire  only  horror 
and  scorn.  Their  adversary  has  no  idea  that  there  can 
be  in  respect  to  them  either  morality  or  justice.  Others, 
more  favored,  excite  sympathy  or  compassion.  Christian 
charity  presupposes,  on  the  other  hand,  a  minimum  of 
justice  and  benevolence  for  every  human  being.  The 
principles  enunciated  by  the  Gospel  are  not,  however, 
those  of  sentimental  universality.  To  say  that  one  ought 
to  love  all  men  as  one  does  oneself  would  be  insanity, 
for  hundreds  of  people  suffer  and  die  without  preventing 
us  from  sleeping,  while  the  least  indisposition  on  our 
own  part  gives  us  a  nightmare.  To  love  all  men  as 
we  do  ourselves  would  be  equivalent  to  immediate 
suicide. 

It  all  becomes  reduced  to  the  question  which  Christ 
propounded  to  one  of  the  doctors  of  law,  —  "Who  is  my 
neighbor?"  From  the  parable  of  the  good  Samaritan  it 
may  be  concluded  that  a  neighbor  is  first  of  all  any  one 
who  picks  us  up  when  we  fall  by  the  way,  and  inversely 
that  we  ought  to  be  the  neighbor  of  those  who  fall  by  the 
way  over  which  we  are  traveling,  and  that  in  the  one  case 
as  in  the  other,  we  ought  to  set  aside  every  consideration 
of  class  and  of  race.  The  altruism  of  the  Gospel  is  po- 
tentially universal,  but  not  really  so.  We  do  not  have  to 
concern  ourselves  with  those  who  travel  over  a  way  which 
is  not  ours. 

But  such  has  not  been  in  history  the  most  wide- 
spread theoretical  interpretation.  Many  have  main- 
tained that  we  ought  to  love  all  men,  which  amounts  to 
saying  that  we  ought  to  love  none  of  them  but  sacrifice 


§2]  SENTIMENTS  IN  THE  LAW  235 

ourselves  to  all,  a  conclusion  apt  to  revolt  practical  hearts 
as  well  as  practical  minds.  This  does  not,  however,  pre- 
vent universal  humanitarianism  from  having  played  a 
brilliant  part  in  the  development  of  civilization;  but  it  is 
proper  to  distinguish  it  from  humanitarianism  with  uni- 
versal power,  for  their  nature  and  their  influence  upon 
legislations  are  in  direct  opposition  to  one  another.  The 
first  is  no  longer  sentiment,  it  preserves  only  its  literal 
formulas;  it  is  especially  powerful  among  peoples  and 
classes  in  a  state  of  decadence.  It  breaks  up  small 
groups  for  the  benefit  of  broader  and  broader  collec- 
tivities. It  unifies  the  law  and  simplifies  it,  sometifnes  for 
better,  sometimes  for  worse.  It  is  apparently  equalizing 
but  often  creates  privileges  in  favor  of  the  least  interest- 
ing elements  of  a  population.  The  second  has  entirely 
opposite  characteristics,  and  counterbalances  and  regu- 
lates the  first.  It  is  based  upon  sentiments  which  are 
real  and  profound,  and  works  through  emotion,  in  the 
psychological  meaning  of  the  word.  It  is  a  very  curious 
fact  that  the  majority  of  reproaches  cast  by  practical 
minds  upon  the  influence  of  sentiment  in  laws  are  di- 
rected not  against  real  sentiment,  but  against  universal 
humanitarianism,  which  is  at  bottom  only  a  theory. 

The  two  altruisms  .possess,  nevertheless,  one  and  the 
same  type  of  justice  and  morality,  which  is  based  upon  the 
pleasure  or  the  pain  of  others.  This  may  be  expressed  in 
the  following  terms:  "If  I  steal,  I  shall  inflict  upon  an- 
other an  injury  which  will  cause  him  suffering,  and  the 
idea  of  another's  suffering  is  painful  to  me."  However, 
the  last  proposition  is  only  fictitiously  true  in  universal 
humanitarianism.  The  joy  and  sorrow  of  others  no 
longer  effectively  react  upon  our  organism.  The  person 
who  gives  food  and  clothes  to  a  poor  man,  may  rejoice 
directly  in  the  pleasure  which  he  affords;  the  one  who 
gives  a  hundred  francs  to  a  work  of  charity  knows  only 
that  his  money  will  bring  good  to  someone,  but  he  has  no 


236  LAW  AND  EMOTIONAL  LIFE     [CH.VH 

concrete  representation  of  this  good  and  therefore  can  ex- 
perience no  emotion  from  it. 

This  morality  and  this  humanitarian  justice,  which  ap- 
praises actions  according  to  the  pleasure  or  the  pain  pro- 
duced, imposes  itself  to  a  certain  extent  upon  everyone 
and  is  sufficient  in  daily  practice  for  a  great  many  highly 
moral  people.  Thus  everybody  admits  that  to  rob  a  poor 
man  is  worse  than  to  rob  a  rich  man,  a  principle  which  is 
explicable  by  this  particular  system  of  morality,  but  by 
no  other.  Besides,  this  system  is  far  from  being  always 
in  accord  with  abstract  morality;  for  according  to  it  when 
the  suffering  caused  is  but  slight,  the  act  ceases  to  be 
blameworthy.  It  justifies  the  common  but  highly  ex- 
ceptionable maxim,  that  to  rob  a  very  wealthy  person,  or 
the  State,  is  not  to  rob. 

(2)  Jealousy.  While  man  has  been  living  with  his 
fellow-man,  he  has  not  learned  merely  to  love  him.  There 
has  also  been  developed  in  him  a  feeling  over  which  the 
optimist  very  skilfully  throws  a  veil,  but  which  the  serious 
historian  and  psychologist  cannot  ignore:  i.e.,  jealousy. 
Animals  are  jealous  of  one  another;  dogs  dispute  among 
themselves  for  the  bones  which  are  thrown  to  them,  and 
for  their  master's  caresses.  Some  moralists  would  like  to 
make  us  believe  that  man  derives  this  evil  tendency  from 
his  animal  nature,  that  he  loses  it  gradually  as  he  becomes 
civilized,  and  will  finally  rid  himself  of  it  altogether.  This 
is  exactly  the  opposite  of  the  truth.  Animal  jealousy  is 
simple,  rudimentary  and  accidental;  in  the  human  heart, 
it  is  complex,  developed,  and  continual.  It  is  only  one  of 
the  colors  which  in  juxtaposition  with  others,  furnishes 
a  picture  of  the  real  state  of  feeling  in  society;  it  is,  how- 
ever, so  widespread,  that  its  shades  are  found,  darker  or 
lighter,  in  nearly  every  human  institution. 

A  man  is  more  jealous  than  an  animal,  for  the  very  good 
reason  that  he  has  many  more  things  to  be  jealous  of. 
He  has  to  be  jealous  of  everything  he  has,  in  order  to  de- 


§2]         SENTIMENTS  IN  THE  LAW         237 

fend  it,  and  of  everything  he  has  not,  in  order  to  try  to 
acquire  it.  What  he  desires  and  cannot  have  leaves  his 
heart  full  of  bitterness.  The  things  which  he  desires  are 
infinite  in  number  and  variety:  material  and  immaterial 
pursuits,  objective  realities  and  subjective  impressions, 
good  things  and  bad.  Every  time  that  he  enriches  him- 
self in  money,  morality,  or  intelligence,  he  acquires  new 
motives  for  regarding  his  neighbor  with  mistrust,  and  ap- 
proaching him  cautiously.  There  is  no  pleasure  so  pure 
nor  ideal  so  disinterested  that  one  does  not  try  to  ap- 
propriate it  to  oneself  and  dislike  to  see  it  appropriated  by 
others.  An  ancient  fable  portrays  the  dog  in  the  manger, 
who  would  neither  eat  the  hay  nor  let  the  ox  eat  it. 
It  is  human  jealousy  that  is  attributed  to  this  poor 
creature,  a  complex  sentiment  developed  by  social  contact, 
in  which  the  instinct  of  self-preservation  no  longer  plays 
a  part.  In  order  to  understand  it  better,  three  types 
may  be  distinguished : 

(a)  Jealousy,  properly  so-called,  the  fear  of  losing  the 
goods  to  which  we  cling;  distrustful  aversion  toward  those 
who  may  take  them  away  from  us.  (b)  Mere  envy,  the 
desire  to  take  from  others  what  we  ourselves  do  not 
possess.  Finally  (c),  malevolent  envy,  the  desire  to 
destroy  something  of  another's  that  makes  him  happy, 
without  any  personal  advantage  to  ourselves. 

To  these  three  sentiments  there  correspond  three  social 
forces.  Proud'hon  said:  "Democracy,  that  is  envy." 
This  proposition  is  incontestable,  provided  we  add: 
"Aristocracy,  that  is  jealousy."  As  for  malevolent 
jealousy,  it  is  the  lot  of  abnormal  persons  and  those  who 
are  unclassed,  either  because  from  a  high  position  they 
have  fallen  low,  or  having  started  in  the  lower  ranks  they 
are  slow  in  their  ascent.  Democracies  arise  as  soon  as 
one  portion  of  the  cake  is  a  little  larger  for  one  class  than 
for  another;  aristocracies  —  in  the  broadest  meaning  of 
which  the  word  is  capable  —  set  a  guard  around  their 


238  LAW  AND  EMOTIONAL  LIFE      [  CH.  VII 

situation  as  the  old  husband  does  around  his  young  wife. 
Every  newcomer  is  suspected  by  them  of  wishing  to  steal 
a  part  of  their  fortune  or  their  prestige.  Those  who  are 
victims  of  malevolent  jealousy  are  more  isolated,  but  their 
social  action  is  more  energetic.  History  abounds  with 
such  types.  This  grouping  of  classes  by  their  bad  sides 
does  not,  be  it  understood,  authorize  us  to  scorn  any  of 
them.  We  are  simply  pointing  out  one  of  their  many 
psychological  attributes. 

Fortunately,  this  multiplicity  of  the  occasions  of  jeal- 
ousy has  likewise  its  good  side.  Some  depend  upon 
others;  they  complement,  oppose,  or  counterbalance  one 
another.  There  is  no  human  being  however  unrelated  or 
closely  associated  with  us  with  whom  we  are  not  in  com- 
petition to  a  certain  extent.  Husband  and  wife,  brothers 
and  sisters,  parents  and  children,  are  up  to  a  certain  point, 
opponents  of  one  another.  Each  strives  to  play  a  certain 
part  in  the  family  life  and  is  afraid  of  seeing  himself 
effaced  or  deserted  in  consequence  of  the  too  great  success 
of  the  one  whom  he  loves  most.  As  individuals,  we  may 
be  jealous  of  our  nearest  relatives;  as  members  of  a  fam- 
ily, of  the  neighboring  family;  as  inhabitants  of  a  town, 
of  the  inhabitants  of  another  town;  as  citizens  of  a  nation, 
of  the  citizens  of  other  nations;  as  members  of  the  white 
race,  of  the  black  and  the  yellow  races.  Thus,  our  psy- 
chology comprises  an  incalculable  number  of  circles  of 
jealousy  of  large  radius  and  small.  But  according  to  the 
time,  the  institutions,  and  the  political  atmosphere,  the 
outer,  the  middle  or  the  inner  circles,  with  a  people  or  a 
class,  are  laden  with  hatred  and  distrust.  The  distribu- 
tion of  the  passion  of  jealousy  is  never  the  same  at  any 
two  moments  of  history;  more  than  any  other  psycho- 
logical or  even  any  material  element,  it  gives  character 
to  a  civilization. 

Jealousy  is  not  an  evil  when  it  is  not  exaggerated,  that 
is  to  say,  when  it  is  sufficiently  distributed  and  not  con- 


§2]  SENTIMENTS  IN  THE  LAW  239 

centrated  upon  a  single  point.  It  is,  perhaps,  even  a 
factor  in  life  and  progress,  provided  its  circulation  be 
regular.  Likewise  we  must  mistrust  dreams  of  universal 
brotherhood  which  run  a  great  risk  of  congesting  the 
most  intimate  social  organisms  with  all  the  malice  which 
is  driven  from  the  extremities.  Observe  a  philanthropist 
carefully  and  you  will  always  discover  the  circle  which 
bears  the  weight  of  his  malice  and  ill-temper;  for  the  best 
man  is  not  perfect,  and  we  may  wonder  if  it  would  be 
perfect  to  be  free  from  all  jealousy. 

In  clinics  of  insane  or  of  mentally  deranged  persons, 
partial  studies  of  this  emotion  have  been  made.  Amorous 
jealousy  is  one  of  the  most  frequent  types;  what  appears 
as  characteristic  of  this  cerebral  malady  is  not,  perhaps, 
the  intensity  of  the  sentiment,  for  pathological  jealousy 
does  not  always  evince  a  violent  desire  to  preserve  what  it 
loves,  nor  is  it  exaggerated  suspicion,  for  the  jealous  person 
does  not  always  reason  badly;  it  is  rather  the  concentra- 
tion of  the  whole  passion  upon  a  single  object.  The 
fixed  idea  or  rather  the  fixed  emotion  is  the  symptom  and 
perhaps  the  agent  of  the  cerebral  injury,  for  the  insane 
jealousy  of  the  husband  in  regard  to  his  wife  is  cured  by 
separation,  that  is  to  say,  by  scattering  his  ideas  or  his 
emotions  by  new  occupations.  Social  life  has  made  us 
irritable,  distrustful  and  sadly  sensitive  in  regard  to  the 
success  of  others.  Scattered,  these  feelings  are  easily 
overcome  or  remain  inoffensive  and  even  die  out  unrecog- 
nized by  our  own  consciousness.  Concentrated  upon 
some  one  object  they  may  lead  to  crime  or  insanity. 

5:  PURELY  MORAL  AND  JURIDICAL  EMOTIONS.  The 
sight  of  good  and  evil,  of  justice  and  injustice,  can  arouse 
in  us  many  and  varied  emotions,  the  chief  of  which  we 
have  just  pointed  out.  Every  one  has  his  own  ideas  of 
morality  and  of  justice.  Religious  or  popular  enthusi- 
asm, shame  before  God  or  man,  fear  of  ridicule,  love  of 
one's  neighbor  and  the  desire  to  spare  him  suffering,  and 


240  LAW  AND  EMOTIONAL  LIFE      [Cn.VII 

perhaps  even  the  equilibrium  of  jealousies,  form  quite  as 
many  sentimental  systems  of  morality  and  juridical  phi- 
losophy. Although  independent  of  one  another  by  nature 
and  logic,  they  are  generally  combined  in  practical  life. 

Does  there  exist  a  specific  sentiment  of  justice  and  right 
which  can  be  clearly  distinguished  from  all  those  which 
we  have  hitherto  enumerated?  To  divide  the  question, 
can  such  a  sentiment  be  defined  and  its  existence  in  the 
hearts  of  a  certain  number  of  human  beings  proved? 

(1)  Justice.  Different  Kinds.  To  love  the  just  for 
the  sake  of  the  just,  is  to  love  not  a  principle,  but  an 
abstraction,  that  is  to  say,  not  a  complete  logical  system 
and  all  the  consequences  which  it  involves,  but  a  more  or 
less  vague  form  which  comprises  an  agglomeration  of  the 
facts  of  concrete  life.  Can  man  love  an  abstraction? 
Certainly;  for  it  represents  a  mass  of  indefinite  things  each 
of  which  may  have  an  emotive  character.  Our  mental 
generalizations  and  the  resulting  classifications  are  not  of 
service  solely  in  intellectual  operations ;  the  passions  speak 
the  abstract  language  fashioned  by  the  intelligence.  An 
insult  places  the  detested  being  in  the  category  of  detested 
things;  and  praise,  the  admired  being  in  the  category  of 
admired  things.  To  feel  that  an  act  is  good  or  bad,  is  to 
project  the  general  and  abstract  emotion  upon  a  particular 
object,  is  to  make  a  deduction  from  emotion.  In  the  most 
primitive  stages  of  sentiments,  an  enemy  is  called  a  beast 
or  a  dog,  —  words  that  are  more  concrete  but  none  the  less 
abstractions  and  generalizations  from  odious  impressions 
previously  experienced.  It  is  unpleasant  to  be  called 
"dog,"  because  among  the  characteristics  of  the  dog 
there  are  those  which  are  repugnant  to  man  and  from  which 
he  has  received  a  painful  impression.  This  impression  is 
awakened  by  the  insult,  without  its  being  necessary  to 
reflect  at  length  as  to  what  is  so  disagreeable  in  the  com- 
parison of  a  man  to  an  animal.  Injustice  is  an  emo- 
tional synthesis  of  the  same  nature.  Personal  experience 


§2]  SENTIMENTS  IN  THE  LAW  241 

has  given  us  this  power  of  suffering  and  of  revolt  against 
everything  that  can  awaken  this  abstract  emotion  which 
we  recognize  without  remembering  all  the  occasions  upon 
which  it  has  been  aroused  in  us.  We  love  the  just  for  the 
sake  of  the  just  when  we  are  made  happy  or  unhappy  by 
an  act  for  the  sole  reason  that  it  gratifies  or  offends  the 
juridical  synthesis  of  our  existence. 

As  individuals  and  peoples  have  not  the  same  experi- 
ences, the  content  of  the  sentiment  of  justice  is  essentially 
variable.  One  may  condemn  what  another  approves. 
Nevertheless,  injustice  has  the  same  character  for  all  — 
that  of  being  a  "revolting  inequality."  The  emotion  of 
pure  justice  is  therefore  the  enjoyment  of  harmony,  of 
equality,  of  proportion;  but  history  shows  that  the  cir- 
cumstances in  which  it  may  be  experienced  bear  little  re- 
semblance to  one  another.  As  for  human  inequalities, 
some  appear  natural,  necessary,  and  fortunate,  others, 
cruel  and  revolting.  Nobody  in  the  world  believes  in  ab- 
solute equality  or  inequality  either  theoretically  or  tem- 
peramentally, so  that  an  infinite  variety  of  combinations 
is  possible. 

In  the  juridical  domain,  however,  three  types  of  the 
sentiment  of  justice  may  be  distinguished: 

(a)  There  are  peoples  and  individuals  for  whom  the 
violation  of  a  law  is  painful,  no  matter  who  its  author 
and  what  its  practical  importance.  The  obligation  to 
obey  laws  is  a  juridical  equality  of  the  first  importance. 
The  texts,  indeed,  may  be  much  more  favorable  to  some 
than  to  others,  but  the  public  spirit  does  not  revolt 
against  this  inequality  of  treatment.  There  would  be 
general  indignation  on  the  other  hand,  if  anyone,  how- 
ever high  his  position,  should  be  seen  to  scorn  established 
institutions.  Among  such  peoples,  game  will  not  be  seen 
upon  the  menus  of  official  banquets  in  the  season  when 
hunting  is  forbidden.  This  love  of  legality,  this  general 
and  obligatory  respect  of  law,  rests  upon  a  fundamental 


242  LAW  AND  EMOTIONAL  LIFE     [Cn.  VII 

conception  of  equality.     We  shall  call  it  the  sentiment 
of  legal  justice. 

When  English  authors  affirm  that  they  are  pained  by 
every  violation  of  the  law,  and  rejoice  in  every  proof  of 
honor  in  this  respect,  and  that  this  limits  their  conception 
of  justice,  we  ought  to  limit  ourselves  to  recording  this 
special  manifestation  of  juridical  sentimentality  without 
condemning,  or  approving  it.  Juridical  sentiment  prop- 
erly so-called,  that  which  affects  the  lawyer  when  he  sees 
good  or  bad  judging,  is  likewise  attached  to  emotive  legal- 
ity. 

(b)  Intralegal  justice  is  satisfied  with  finding  equality 
in  the  law.     Every  privilege  offends  it;  it  rejoices  in 
seeing  all  citizens  submitted  to  the  same  provisions.     But 
it  is  not  concerned  with  what  each  can  derive  from  the 
letter  of  the  law;  so  much  the  better  for  the  clever,  so 
much  the  worse  for  the  stupid.     Accordingly,  the  latter 
are  ruined  by  the  same  provisions  which  make  the  for- 
tunes of  others.     There  is  nothing  shocking  in  this,  since 
they  have  only  to  do  as  those  others  do. 

(c)  Finally  justice  is  ultralegal  when  it  sees  in  the  law 
an  instrument  by  which  to  establish  a  certain  measure  of 
real  equality  among  the  citizens  of  a  country.     In  order 
to  institute  equality  through  the  law,  this  justice  is  very 
often  compelled  to  suppress  it  in  the  law,  and  does  it 
cold-bloodedly  and  without  compunction. 

It  is  not  in  our  province  to  discuss  whether  one  of  these 
feelings  of  pure  justice  is  higher  than  the  others.  All 
three  reach  far  back  in  history  and  appear  to  have  existed 
side  by  side.  They  do  not  represent  in  relation  to  one 
another  improved  forms  of  one  and  the  same  tendency. 
Every  man,  every  people,  every  epoch  may  revolt  against 
a  violation  of  the  law,  an  injustice  in  the  law  and  an  in- 
justice through  the  law.  But  individuals,  nations  and 
generations  are  very  unequally  sensitive  to  these  different 
types  of  inequity. 


|2)  SENTIMENTS  IN  THE  LAW  243 

(2)  Differentiation  Between  the  Sentiment  and  the  Idea  of 
Justice.  An  affection,  however,  could  not  take  the  place 
of  a  mathematical  theory.  Those  who  most  "hunger  and 
thirst  after  justice"  perform  in  the  course  of  their  lives 
acts  which  are  contradictory  to  one  another  and  cannot 
be  justified  by  the  same  principle.  Persons  who  believe 
that  their  logic  and  their  passions  are  perfectly  and  defin- 
itively united  are  dangerous.  Dangerous,  but  excusable, 
and  all  the  more  excusable  since  almost  no  philosopher  of 
the  law  warns  them  of  the  radical,  essential  and  eternal 
differences  which  separate  the  most  perfect  sentiment  of 
justice  from  the  idea  of  justice. 

The  latter  is  complete  and  systematic,  the  former,  in- 
complete and  irrational.  The  one  is  always  at  our  dis- 
posal; the  other,  only  accidentally  so.  The  general  prin- 
ciples of  law  can,  up  to  a  certain  point,  be  formulated  in 
books  where  they  may  be  sought  at  need.  We  cannot  so 
easily  question  our  enthusiasm  or  our  indignation  in 
order  to  decide  in  favor  of  a  litigant  and  against  his  ad- 
versary. It  is  very  nice  to  be  able  sometimes  in  the 
course  of  one's  lifetime,  to  devote  one's  whole  strength  to 
an  abstract  idea,  to  give  oneself  soul  and  body  to  a  cause 
from  which  one  has  nothing  to  gain  or  to  lose.  But  this 
does  not  begin  afresh  regularly  every  day;  that  is  physio- 
logically impossible.  A  slight  injustice  may  excite  us  at 
one  moment;  at  another,  when  our  nervous  system  is  ex- 
hausted, a  much  greater  injustice  will  leave  us  quite  un- 
moved. With  our  principles  well  in  hand,  we  can,  on  the 
other  hand,  indefinitely  and  at  any  time,  appraise  each 
act  at  its  respective  value. 

There  is  a  sentiment  of  justice  as  soon  as  the  injury 
to  the  abstract  conception  which  each  may  have  of  it 
becomes  painful,  whatever  the  nature  of  this  concep- 
tion. There  can  be  no  other  criterion.  No  human 
being  is  regularly  affected  by  what  is  logically  unjust. 
The  cases  where  we  react  or  remain  unmoved  are 


244  LAW  AND  EMOTIONAL  LIFE     [CH.VII 

governed  by  chance  and  cannot  be  of  any  theoretical 
value  to  us. 

(3)  Pure  Justice  not  Necessarily  Disinterested.  Neither 
need  we  believe  that  the  sentiment  of  pure  justice  is  neces- 
sarily disinterested.  In  reality,  we  rebel  against  a  wrong 
when  it  affects  our  interests,  much  more  energetically 
than  when  the  interests  of  others  are  involved.  There  is, 
to  be  sure,  no  merit  in  groaning  over  a  personal  wrong. 
But  it  is  not  a  question  of  merit;  we  are  only  trying  to 
appraise  objectively  a  stage  of  emotional  development. 
Without  intending  either  to  flatter  or  disparage  him,  the 
man  of  the  present  day  of  average  moral  worth  is  capable 
of  pure  juridical  emotions,  but  he  nearly  always  experi- 
ences them  when  it  is  a  question  of  his  own  interest.  He 
is  seen  to  prosecute  good,  bad,  and  indifferent  lawsuits. 
If  he  loses  them,  his  indignation  will  not  be  solely  pro- 
portionate to  the  loss  sustained.  This  is  the  case  when 
he  recognizes  deep  down  in  his  being  that  it  was  right 
for  the  decision  to  be  against  him;  in  the  doubtful  cases, 
he  approves  with  his  whole  heart  all  the  provisions  and 
interpretations  which  are  favorable  to  him,  and  he  ap- 
proves them  sincerely,  not  only  in  his  own  interest  alone, 
but  for  all  others;  it  is  much  more  difficult  for  him  to  ex- 
perience that  part  of  equity  contained  in  the  arguments  of 
his  adversary.  As  long  as  he  believes  rightly  or  wrongly 
that  were  he  in  his  adversary's  place  he  would  not  con- 
test the  right  which  he  claims,  his  morality  remains  irre- 
proachable, even  if  his  intelligence  is  at  fault.  Finally,  if 
the  injustice  toward  him  is  flagrant,  he  rebels  with  a  very 
particular  violence,  a  good  part  of  which  must  be  attrib- 
uted to  the  fact  that  he  is  clearly  conscious  that  princi- 
ples have  been  violated. 

Jhering  has  proved  very  satisfactorily  that  there  is 
something  else  besides  self-interest  in  the  Struggle  for 
Rights.  He  is  wrong  perhaps  in  attempting  to  trace  this 
excess  of  moral  excitation  to  a  reaction  against  a  personal 


§2]  SENTIMENTS  IN  THE  LAW  245 

offence.  To  demand  from  us  more  than  we  owe,  to  put 
us  in  the  wrong  when  we  are  right,  is  a  way  of  despising 
us.  It  is  understood  that  in  order  to  wipe  out  this  affront 
we  entered  into  a  legal  contest,  the  pecuniary  interest  of 
which  is  only  the  objective,  not  the  motive.  Thus  inter- 
preted, the  Struggle  for  Rights  would  always  be  a  simple 
question  of  often  wrongly  placed  vanity  and  would  have 
but  little  psychological  interest.  In  reality,  there  are 
cases  of  injustice  which  cannot  be  interpreted  as  offences 
but  are  none  the  less  revolting.  I  wish  to  enter  upon  a 
lawsuit,  believing  myself  a  thousand  times  in  the  right, 
but  my  lawyer  assures  me  that  judicial  decision  is  against 
me  and  induces  me  to  abandon  my  intention.  There  is 
nothing  in  that  which  could  offend  my  self-respect;  and 
yet  I  might  be  indignant  at  this  judicial  decision  and  con- 
sider it  hateful  and  unjust.  Besides,  the  average  modern 
man  is  capable  of  feeling  that  it  is  wrong  to  violate  the 
rights  of  others,  even  to  his  own  advantage.  The  most 
dishonest  people  experience  a  certain  uneasiness  in  doing 
wrong.  But  their  joy  at  the  benefit  derived  dissipates 
this  impression  and  consoles  them  for  the  violation  of 
their  ideal. 

To  tell  the  truth,  the  sentiment  of  justice  is  in  itself 
always  impersonal  and  disinterested,  but  it  is  in- 
creased or  diminished  by  personal  and  selfish  sentiments. 
Above  all  else  we  are  bound  to  defend  ourselves  and 
those  we  love.  To  concentrate  our  attention  upon  claim- 
ing our  right  is  an  obligation,  almost  a  duty;  for  if  we  do 
not  do  it,  nobody  will  do  it  for  us.  Certain  juridical 
principles  presuppose  that  everyone  possesses  sufficient 
initiative  to  demand  his  due.  Thus,  in  many  procedures, 
the  judge  can  grant  no  more  than  has  been  claimed.  A 
person  can  scarcely  be  sufficiently  discerning  to  calculate 
exactly  what  he  ought  to  demand.  He  claims  the  most  in 
order  to  have  the  least,  and  if  he  obtains  the  most  he 
keeps  it  without  compunction.  As  for  the  affairs  of 


246  LAW  AND  EMOTIONAL  LIFE      [CH.VII 

others,  save  in  exceptional  cases,  one  ought  not  on  princi- 
ple to  concern  oneself  with  them.  There  are  more  disad- 
vantages than  advantages  in  introducing  public  sentiment 
into  private  affairs.  Thus  in  modern  societies,  occasions 
in  which  we  are  sensible  of  the  just  and  unjust  as  regards 
ourselves  are  more  numerous  than  those  upon  which  we 
experience  the  sentiment  in  regard  to  others. 

From  the  psychological  point  of  view,  emotional  equity 
always  remains  identical  with  itself.  Since  the  earliest 
ages,  it  has  made  its  appearance  under  the  form  of  an 
abstract  affection;  it  may  have  such  a  form  among  the 
lowest  type  of  men,  otherwise  wrongs  would  not  give  of- 
fence. From  the  moral  and  utilitarian  point  of  view,  it 
assumes  its  true  grandeur  and  its  social  importance  only 
when  it  becomes  capable  of  subduing  every  other  senti- 
ment, of  compelling  the  individual  to  act  voluntarily 
against  his  own  interests  rather  than  offend  his  ideal.  He 
who  claims  a  hundred  thousand  francs  because  he  has 
the  right  to  them,  may  be  the  same  as  he  who  gives 
them  up  because  he  had  not  the  right  to  keep  them. 
We  admire  him  in  the  second  role  but  not  in  the 
first.  The  psychological  cause  of  the  two  acts  may 
be  identically  the  same.  May  we  not  believe  that 
justice  should  preserve  its  first  function  in  order  to 
develop  its  second,  which  is  unquestionably  the  noblest 
and  most  beneficent? 

6:  IDEAL  POLITICAL  AND  UTILITARIAN  SENTIMENTS. 
Will  the  man  of  tomorrow  have  a  purer,  most  disinterested 
sentiment  of  justice,  and  one  more  in  conformity  with 
principles  than  the  man  of  today?  In  regard  to  tomor- 
row of  uncertain  date,  when  "the  king,  the  donkey  and 
myself"  will  very  certainly  all  three  be  dead,  one  takes  no 
great  risk  in  prophesying.  I  shall  refrain  from  doing  so 
nevertheless;  for  in  my  opinion,  the  future  of  the  senti- 
ment of  abstract  justice  is  something  contingent  and  can- 
not be  calculated  at  the  present  time. 


§2]  SENTIMENTS  IN  THE  LAW  247 

(1)  Ideal  Utilitarianism.  From  the  fact  that  moralists 
are  studying  it  very  closely  in  its  psychological  nature,  its 
metaphysical  justification  and  its  practical  applications, 
from  the  fact  that  as  a  result  of  this  study,  a  greater  num- 
ber of  benefits  are  enjoyed  by  a  greater  number  of  indi- 
viduals, pure  equity  ought  very  certainly  to  become  more 
active  in  human  psychology.  It  would  become  so  but 
for  its  irreconcilable  enemy,  the  utilitarian  ideal,  which 
destroys  in  a  short  time  the  work  of  several  centuries  and 
compels  the  practical  application  of  justice  to  travel  in- 
definitely in  the  same  vicious  circle. 

Ideal  utilitarianism  is  encountered  among  individuals 
and  nations  of  the  highest  moral  worth  and  among  per- 
sonalities who  yield  nothing  to  Aristides  as  benefactors  of 
humanity.  It  would  be  difficult  to  condemn  this  senti- 
ment absolutely;  besides,  such  condemnation  would  be 
useless.  But  in  order  to  understand  history  aright  it 
must  be  pointed  out  that  these  two  most  noble  and  re- 
spected social  sentiments  have  always  been  hostile  to 
each  other  and  always  will  be. 

If  all  the  people  in  the  world  could,  on  the  same  day 
and  at  the  same  hour,  attain  the  same  moral  stature,  and 
the  next  day  progress  one  degree,  and  so  on,  there  would 
be  nothing  to  prevent  the  speedy  arrival  of  the  absolute 
reign  of  justice.  Unfortunately  reality  brings  together  at 
the  same  time  and  sometimes  at  the  same  place  beings 
who  are  unequal  intellectually  and  emotionally.  The 
best  are  by  definition  the  most  just,  but  can  they  remain 
so  ?  Their  noblest  function  is  to  raise  backward  humanity 
to  their  own  level,  to  set  themselves  up  as  an  example,  to 
protect  their  ideals;  that  is  to  say,  to  protect  themselves, 
to  put  themselves  in  the  foreground,  for  if  they  should 
disappear  or  remain  in  obscurity,  their  ideal  would  share 
their  lot  and  the  world  would  become  the  worse  for  their 
defeat.  It  is  their  duty  to  triumph,  because  the  justice 
which  is  in  them  will  triumph  in  their  triumph.  But  in 


248  LAW  AND  EMOTIONAL  LIFE      [Ga.VII 

order  to  conquer  and  maintain  their  position,  every 
weapon,  even  the  least  commendable,  must  be  used,  and 
the  victory  which  monopolizes  to  the  advantage  of  a  few 
the  sole  direction  of  destiny  is  not  a  just  victory.  Justice 
consists  in  allowing  each  his  place  in  the  sun  and  the 
right  to  develop  himself  by  his  own  efforts.  Now  the  tri- 
umph of  their  betters  despoils  the  others  of  this  right. 
Consequently,  the  just  man  who  triumphs  is  no  longer  a 
just  man..  He  has  compromised  his  ideal  which  he  wished 
to  safeguard.  This  is  why  the  mot  which  a  French  dep- 
uty hurled  into  the  uproar  of  an  excited  session,  "  In  poli- 
tics there  is  no  justice,"  is  a  principle  whose  truth  is 
undeniable. 

And  we  are  speaking  of  politics  in  the  highest  meaning 
of  the  word,  the  pursuit  of  a  future  of  moral  grandeur 
and  material  prosperity  for  the  benefit  of  all.  When  it  is  a 
question  of  international,  national,  world  or  home  politics, 
the  politician  of  the  highest  order  is  compelled  to  lower 
his  ideal  in  order  to  save  it,  to  be  cruelly  inflexible  in  the 
name  of  humanity,  to  arrest  men  in  the  name  of  liberty 
and  regularly  to  commit  wrongs  in  the  name  of  justice. 
He  is  obliged  to  be  utilitarian  and  at  the  same  time 
idealistic,  that  is,  to  understand  the  practical  means  of 
realizing  his  ideals;  and  these  practical  means  are  far 
from  always  being  entirely  honorable. 

A  thorough  and  wholly  impartial  study  has  recently 
been  made  of  the  imperialistic  sentiment  which  is  mani- 
fested at  the  present  time  in  the  most  prosperous  coun- 
tries. It  originated  in  the  writings  and  the  speeches  of 
the  most  illustrious  champions  of  imperialism,  Chamber- 
lain, Roosevelt,  and  Kipling.  It  is  impossible  to  be  mis- 
taken concerning  the  thought  and  the  logic  of  their  sys- 
tem. They  do  not  believe  that  all  peoples,  even  those 
equally  civilized,  are  destined  to  take  part  on  the  same 
footing  in  the  development  of  civilization.  They  think 
that  certain  races  and  certain  nations  —  their  race  and 


§2]  SENTIMENTS  IN  THE  LAW  249 

their  nation  —  ought  to  have  a  preponderating  influence 
morally  and  commercially.  They  desire  universal  domi- 
nation for  their  country.  They  do  not  desire  it  simply 
through  national  selfishness  in  order  to  enrich  themselves 
and  their  fellow  countrymen,  but  through  love  of  the 
superiority  which  they  represent  and  by  means  of  which 
they  wish  to  benefit  humanity  as  a  whole.  In  their  opin- 
ion it  is  their  duty  to  triumph,  to  absorb  into  their  own 
the  destiny  of  mankind.  The  mission  is  a  brilliant  one, 
but  it  will  not  succeed  without  renunciation,  sacrifice, 
and  arduous  toil  upon  the  part  of  the  directing  people. 

Since  they  are  obliged  to  be  stern  toward  themselves, 
we  must  understand  that  sentimental  imperialists  do  not 
propose  to  be  very  gentle  toward  others.  They  will  know 
how  to  fulfill  their  duty  with  humanity,  but  without  weak- 
ness. We  are  acquainted  with  the  course  to  which  this 
formula  corresponds  in  all  practical  questions.  It  is 
proper  in  the  first  place  to  be  merciless  toward  those  who 
may  chance  to  cross  their  path:  it  is  equally  impossible 
to  listen  to  the  demands  of  inferior  peoples  who  claim  to 
have  the  right  to  govern  themselves  and  to  stagnate  in 
their  poverty,  their  vice  or  their  ignorance.  It  is  to  their 
own  interest  that  they  should  be  helped  a  little. 

These  sentiments  are  often  very  sincere  and  very  cred- 
itable in  those  who  hold  them.  But  are  they  not  at  the 
very  antipodes  of  sentiments  of  abstract  justice,  and  al- 
ready very  far  removed  from  the  pure  altruistic  emotion 
which  makes  us  share  the  grief  of  another  and  be  com- 
passionate toward  him  so  far  as  possible? 

If  such  doctrines  expressed  a  whim  of  the  theorist,  or  a 
fit  of  pride  on  the  part  of  peoples  intoxicated  by  prosperity, 
or  a  political  manoeuvre  of  statesmen  in  pursuance  of  a 
selfish  aim,  their  philosophical  importance  would  not  be 
great.  One  may  wonder  at  this  entire  frankness  in  the 
expression  of  ideas  that  are  embarrassing  to  enunciate  be- 
fore the  international  public,  and  at  the  absolutism  of 


250  LAW  AND  EMOTIONAL  LIFE      [Cn.VII 

this  imperialistic  sentiment  which  so  completely  invades 
the  consciousness  of  certain  groups;  but  one  cannot  deny 
that  ideal  utilitarianism  is  also  at  work  to  a  certain  ex- 
tent among  those  who  do  not  acknowledge  it  or  do  not 
believe  that  they  are  obsessed  by  it.  In  fact,  it  must  be 
remarked  that  this  leaning  toward  injustice  on  the  part 
of  the  most  generous  souls  because  they  are  generous  is 
seen  quite  as  often  in  the  sentimentality  of  home  as  of 
national  politics.  To  the  prince  who  sought  the  prosper- 
ity of  his  dominions,  Machiavelli  advised  the  habitual 
use  of  murder  and  treachery.  In  internal  politics  of  all 
times,  and  —  to  varying  degrees  —  in  all  countries,  the  vic- 
torious party  is  authorized  by  the  fact  that  it  is  the  best 
to  commit,  in  regard  to  the  conquered,  necessary  wrongs. 
They  all  attempt  to  render  their  conduct  legitimate  by 
the  same  argument.  "Our  duty,  our  only  duty,  is  to  tri- 
umph by  all  means,  not  in  our  personal  interest,  but  for 
the  idea  which  we  represent  and  for  the  future  of  hu- 
manity." It  is  entirely  needless  to  give  examples.  The 
most  mediocre  historian  can,  unaided,  choose  among  the 
lot. 

(2)  Result  of  Struggle  Between  Emotive  Justice  and  Ideal 
Utilitarianism.  What  is  the  result  of  this  struggle  be- 
tween emotive  justice  and  utilitarian  sentimentality,  as 
related  to  historical  progress?  The  masses  learn,  by  ex- 
perience and  from  the  teachings  of  jurists  and  philoso- 
phers, to  recognize  even  in  detail  what  ought  to  accrue  to 
both.  They  are  pleased  to  see  the  application  of  rules 
that  are  dear  to  them.  They  love  justice  as  if  it  were  a 
person  in  flesh  and  blood;  when  its  decrees  are  not  obeyed, 
they  feel  that  it  has  been  outraged  and  they  are  in- 
dignant. But  some  fine  day,  one  of  life's  chances  brings 
them  face  to  face  with  groups  of  a  lower  class  whose 
ideal  is  coarser.  What  would  become  of  their  goddess  in 
such  hands?  In  order  to  save  her,  they  do  not  hesitate 
to  sacrifice  their  ideals  of  order,  tolerance,  and  equity,  — 


§2]  SENTIMENTS  IN  THE  LAW  251 

every  moral  abstraction  so  painfully  acquired.  They 
hope,  however,  that  the  era  of  injustice  is  only  temporary 
and  that  they  will  soon  be  able  to  resume  their  interrupted 
worship.  It  is  impossible  to  affirm  that  they  are  right 
or  wrong. 

Judged  by  its  results,  utilitarianism  will  be  good  or 
bad  according  to  circumstances:  it  may  end  in  barren 
loss  or  in  moral  gain.  The  superiority  of  the  people  or  of 
the  party  which  wishes  to  govern  at  any  price,  may  be 
only  apparent;  it  may  be  incontestable  but  partial  —  the 
Americans  are  unquestionably  superior  to  the  continental 
nations  with  regard  to  certain  traits  of  character,  unques- 
tionably inferior  with  regard  to  certain  others,  —  it  may  ' 
be  general,  but  to  a  limited  extent.  In  these  three  cases, 
the  one  that  triumphs  by  unjust  means  is  not  in  a  posi- 
tion to  restore  the  equivalent  of  what  it  has  destroyed. 
Sometimes  mankind  is  definitely  weakened  by  the  vic- 
tory. 

It  may  happen,  on  the  other  hand,  that  the  ideal  to  be 
preserved  is  of  such  value  that  even  when  imposed  by 
force  against  the  law,  it  effects  progress.  The  superiority 
of  a  people  or  a  party  may  be  so  great  that  its  disappear- 
ance would  be  the  greatest  misfortune  to  humanity.  Per- 
haps there  are  people  whose  rule  it  would  be  well  to  buy 
even  at  the  price  of  the  sentiments  of  equity  and  liberty. 
These  valuable  abstractions  cannot  be  of  as  much  bene- 
fit to  us  as  the  guidance  of  certain  thinkers.  If  every  one 
knew  how  to  appraise  himself  at  his  just  value,  imperial- 
ism, reasons  of  State,  political  tyranny,  and  every  form  of 
ideal  utilitarianism  would  be  salutary.  Unfortunately, 
since  every  one,  with  the  best  faith  in  the  world,  esti- 
mates his  own  worth  to  be  greater  than  it  is,  exaggerates 
his  own  superiority  and  the  inferiority  of  his  neighbor, 
and  attaches  undue  importance  to  his  own  ideas,  the  sen- 
timent which  impels  us  to  try  and  make  the  world  better, 
is  more  harmful  than  otherwise.  But  since  there  are  no 


252  LAW  AND  EMOTIONAL  LIFE     [Cn.VII 

means  of  suppressing  it,  and  since  it  is  manifested  among 
the  highest  types  of  mankind,  it  must  be  admitted  that 
the  human  ideal  of  justice  is  far  from  having  before  it  a 
smooth,  clear  road.  If  it  possesses  the  strength  to  make 
the  journey,  it  has  a  dangerous  traveling  companion,  who 
will  do  it  a  good  or  a  bad  turn  according  to  circumstances. 
And  since  we  do  not  understand  these  circumstances,  and 
since  nobody  understands  them,  we  shall  refrain  from 
speaking  of  the  justice  of  tomorrow. 

§  3.  Influence  of  Sentiment  upon  the  Law.  Thus  senti- 
ment enters  into  the  law  from  every  direction.  Is  this 
for  better  or  for  worse?  Would  logic  be  of  more  value  if 
it  were  never  a  passion,  but  a  syllogism  whose  develop- 
ment would  be  regular  and  mechanical?  Can  we  conceive 
of  a  law  which  would  consist  solely  of  reason  and  logic? 
Of  those  who  concern  themselves  with  legislation  and  es- 
tablish plans  for  reforms,  we  term  some  sentimentalists, 
others,  men  of  dry  and  positive  minds.  Have  these  words 
any  meaning  in  our  subject? 

1:  CONFLICT  BETWEEN  THE  PRACTICAL  AND  THE  SEN- 
TIMENTAL. (1)  Opposition  as  Regards  Juridical  Aim.  In 
the  determination  of  the  juridical  aim,  the  role  of  senti- 
ment seems  important  and  necessary;  apparently  nothing 
could  take  its  place.  If  we  are  entirely  indifferent  to  the 
past  and  the  future,  it  is  quite  useless  for  us  to  make 
laws.  We  must  know  what  pleases  us  before  we  can  seek 
the  means  of  realizing  it.  Juridical  aims  are  all  of  senti- 
mental origin.  But  they  are  not  entirely  sentimental. 
One  may  propose  to  himself  to  satisfy  an  affection  or  to 
realize  an  ideal  through  the  law.  The  ideal  was  a  senti- 
ment, but  it  is  so  no  longer;  it  is  an  extinct  sentiment. 
It  has  become  an  idea,  a  principle,  and  belongs  to  the  in- 
tellectual life.  "No  being  should  be  punished  for  an- 
other's fault,"  is  a  formula  of  emotional  origin,  but  it  can 
be  treated  like  any  geometric  axiom.  The  ideal  may  not 
be  approved  by  the'  one  whose  activity  effects  its  triumph, 


§3]  INFLUENCE  ON  THE  LAW  253 

Thus  the  judge  and  lawyer  ought,  in  my  opinion,  to  seek 
the  juridical  aims  contained  in  the  texts  without  evalu- 
ating them.  Even  the  legislator  may  admit  ideals  which 
do  not  appear  to  him  very  exalted.  Of  those  who  estab- 
lished divorce,  many  do  not  care  to  have  recourse  to  it 
themselves.  In  the  making  of  laws  and  the  practice  of 
law,  certain  minds  prefer  to  be  guided  by  sentiment,  others 
by  ideals,  which  are  precise  formulas  exempt  from  the 
vices  of  emotional  logic. 

(2)  Opposition  as  Regards  Degree  of  Immediacy  of  Cause. 
The  two  temperaments  are  futher  revealed  by  other  ten- 
dencies. There  is  not  a  text  of  law  which  has  not  a  senti- 
mental cause,  but  this  cause  may  be  more  or  less  immedi- 
ate. The  extremely  sentimental  individual  holds  that 
the  text  is  the  direct  revelation  of  what  he  feels,  and  he  is 
solaced  by  its  very  expressions  for  the  injustice  which  he 
encounters  in  life.  He  risks  compromising  the  future  of 
those  he  loves  by  these  immoderate  manifestations  of  his 
sentiment. 

Illegitimate  children  are  born  through  a  fault  not 
theirs.  Is  it  just  that  they  should  suffer  from  it?  We  are 
tempted  to  cry  out,  with  Alexander  Dumas,  shame  and 
malediction  upon  those  who  wish  to  hold  them  account- 
able for  their  original  blemish.  Therefore,  we  think  that 
in  their  fathers'  succession  they  should  be  given  a  share 
equal  to  what  they  would  have  had  if  they  had  been  le- 
gitimate. But  if  we  do  this  and  make  a  law  entirely  in 
their  favor,  perhaps  many  illegitimate  fathers  will  hesi- 
tate before  a  recognition  which  would  seriously  involve 
their  future,  and  some  bastard  who  would  have  been 
recognized  under  a  sterner  law  will  not  be  under  a  milder 
one.  We  shall  have  expressed  in  the  law  very  humane  in- 
tentions; we  have,  in  reality,  inflicted  an  injury  upon 
those  we  wished  to  favor. 

The  sentimental  jurist  of  the  latter  category  may  be 
characterized  as  follows.  He  wishes  above  all  else  to  un- 


254  LAW  AND  EMOTIONAL  LIFE      [CH.  VII 

bosom  himself.  The  law  is  the  exercise  by  which  he 
soothes  his  nerves  and  to  it  his  heart  entrusts  all  its  ten- 
der sentiments.  But  he  often  does  more  harm  than  good 
to  the  interests  which  he  tries  to  serve. 

More  cultivated  persons  make  better  calculations. 
They  know  how  to  restrain  their  emotional  reactions  and 
to  choose  the  most  favorable  means  of  satisfying  them. 
Daudet's  Pope's  mule  calculated  its  kick  for  seven  years. 
The  practical  man  imitates  the  mule  in  this  respect. 
Reflection  holds  back,  until  the  opportune  moment, 
what  emotion  would  like  to  bring  nearer,  so  that  the 
sentimental  aim  of  the  law  may  be  situated  very  close 
to  the  text  or  very  far  from  it. 

In  the  matter  of  consent  of  parents  to  the  marriage  of 
their  children,  is  it  best  to  be  strict  or  lenient?  Some 
readers  will  be  more  particularly  interested  in  the  end  of 
the  novel,  in  which  there  is  opposition  to  the  lovers  by  the 
parents  who  look  unfavorably  upon  the  union;  another 
will  be  less  concerned  with  the  immediate  trials  of  the 
hero  and  heroine.  He  will 'ask  himself,  "For  this  mar- 
riage to  be  permanent  and  happy,  is  the  influence  of  the 
parents  good  or  bad?"  Others  still  will  overlook  the  in- 
dividual happiness.  The  constitution  of  the  family  is  im- 
portant for  the  prosperity  of  a  nation,  and  it  is  this  fea- 
ture in  which  they  are  interested. 

What  nations  are  the  most  prosperous,  those  in  which 
children  marry  as  they  like  or  those  in  which  they  remain 
a  long  time  under  the  authority  of  their  parents?  The 
prosperity  of  a  nation  is  a  sentimental  aim,  for  it  can  have 
no  interest  except  in  the  pleasure  it  procures  for  indi- 
viduals; but  this  is  a  sentimental  aim  far  removed  from 
the  legislative  measure  under  discussion.  Whatever, 
therefore,  be  the  legal  text,  there  exists,  or  can  exist,  a 
series  of  sentiments,  "S,  S',  S."  .  .  .  Sn,"  which  are 
capable  of  being  related  to  it.  Necessarily  we  have  re- 
course to  one  or  the  other;  but  we  cannot  make  a  serious 


§3]  INFLUENCE  ON  THE  LAW  255 

study  of  legislation  or  of  juridical  interpretation  without 
pointing  out  the  exact  situation  of  the  sentiment  which  is 
or  has  been  chosen. 

Among  human  minds,  some  almost  always  choose  the 
nearest  sentimental  object,  "S,"  and  are  termed  senti- 
mentalists; others,  the  farthest,  "Sn,"  and  are  termed 
positivists. 

Those  who  are  most  often  guided  by  the  nearest  emo- 
tion are  generally  the  inexperienced,  for  whom  life  still 
holds  many  illusions.  They  may  do  a  great  deal  of  harm, 
while  trying  to  do  a  little  good.  The  positivists  are  not 
free  from  all  reproach.  It  is  their  lot  to  sacrifice  a  more 
immediate  human  benefit  for  an  abstraction  that  is  not  al- 
ways of  great  value.  A  prince,  the  disciple  of  Machiavelli, 
had  brought  about,  through  assassinations,  a  number  of 
unquestionable  evils;  as  a  result  the  dignity  and  prosperity 
of  his  country  which  were  his  true  desire  had  been  greatly 
diminished .  Under  the  skin  of  the  utilitarian  there  often 
dwells  the  visionary.  Economic  prosperity,  military  su- 
periority, scientific  prestige,  or  social  progress  —  any  one 
of  which  is  a  great  deal  but  not  everything  in  life  —  seems 
to  him  the  sole,  the  indisputable  aim  of  humanity.  They 
are  a  little  like  the  middleman  who  said  that  when  the 
ship  goes,  everything  goes. 

(3)  Opposition  as  Regards  Minimum  Sentimental  Type. 
Finally,  the  practical  and  the  sentimental  man  are  op- 
posed in  the  making  of  the  laws  and  in  juridical  interpre- 
tation from  a  third  point  of  view.  In  law,  as  in  legisla- 
tion, there  often  arises  the  necessity  of  inventing  a  mini- 
mum sentimental  type,  an  imaginary  person  whom  it  is 
still  desirable  to  admit  in  the  law,  but  beneath  whom 
there  is  no  one  that  is  worthy  of  legal  protection.  The 
choice  of  this  person  is  purely  arbitrary.  A  being  pos- 
sessed of  refinement  and  morality  or  a  mere  brute  may  be 
chosen.  We  can  be  guided  by  no  rational  principle. 
There  exists  in  real  sentimentality  an  extraordinary  va- 


256  LAW  AND  EMOTIONAL  LIFE     [CH.VII 

riety  of  gradations;  there  is  no  reason  for  our  stopping  at 
one  scale  of  the  ladder  rather  than  at  another. 

Ought,  for  example,  insanity  to  be  a  ground  for  divorce? 
He  who  hurries  his  wife  who  has  become  insane  from  child- 
birth into  an  asylum  and  marries  again  does  not  exhibit 
very  refined  feelings.  The  woman  who  would  act  the 
same  towards  her  husband  who  had  become  mentally  de- 
ranged through  overwork  in  trying  to  increase  their  com- 
mon prosperity,  would  never  again  excite  our  admira- 
tion. Cujas  had  an  entirely  different  \\ay  of  interpreting 
the  celebrated  "Nunc  ipsa  pericula  jungunt."  He  would 
compel  the  husband  or  the  wife  of  a  leper  to  brave  con- 
tagion in  order  to  continue  the  conjugal  life  in  its  full 
intimacy.  "For  better,  for  worse,"  was  a  juridical  duty 
which  he  interpreted  after  a  very  exalted  but  perhaps  a 
rather  stern  fashion. 

So  complete  a  spirit  of  self-sacrifice  is  not  obligatory 
upon  everyone.  There  are  many  more  practical  persons 
who  do  not  care  to  bring  so  much  of  the  ideal  into  their 
lives.  Can  anybody  force  them  to  do  it?  It  is  more 
liberal  to  allow  everyone  his  sentimental  liberty,  but  it 
cannot  be  done.  The  practical  individual  who  finds  it  to 
his  advantage  to  get  rid  of  a  husband  or  wife  who  has  be- 
come mentally  unbalanced  will  be  outstripped  by  another 
more  practical  still,  who  will  grow  tired  of  a  sick  husband 
or  wife  when  the  malady  is  incurable,  or  when  it  threatens 
too  long  a  duration,  or  even  if  it  is  only  temporary.  We 
might  cite  people,  possessed  of  slight  sensibility  but  not 
devoid  of  morality,  with  whom  it  is  the  custom,  when  one 
of  the  two  is  ill,  for  the  other  to  go  off  in  search  of  amuse- 
ment, not  returning  until  after  the  sufferer  recovers. 
There  are  cases  of  those  who  are  still  less  sentimental, 
those  who  think  it  very  strange  that  any  attempt  should 
be  made  to  bind  them  to  any  obligations  of  fidelity  or 
helpfulness  which  are  not  in  accordance  with  their  tem- 
perament. So  that  however  low  we  descend  in  the  social 


§3]  INFLUENCE  ON  THE   LAW  257 

scale,  society,  respectable  and  unrespectable,  always  pre- 
sents to  us  a  picture  of  the  sentimentally  superior  being 
trying  to  impose  his  rules  upon  one  sentimentally  inferior, 
while  the  latter  complains  of  the  oppression. 

As  there  can  be  no  logical  reason  for  the  choice  of  the 
higher  or  the  lower  rule  of  conduct,  the  positivistic  tem- 
perament reduces  the  demand  of  the  law  to  its  minimum, 
while  the  sentimental  would  have  a  tendency  to  find  in  it 
the  expression  of  a  more  refined  type  of  morality. 

2:  LEGISLATIVE  AND  JURIDICAL  LABOR  SENTIMENTAL 
IN  FORM  AS  WELL  AS  IN  SUBSTANCE.  In  the  study  of  law, 
no  one  can  neglect  the  emotional  life.  Lawyers  and  legis- 
lators, the  highest  visionaries  and  the  most  debased  sen- 
sualists, differ  only  in  the  quality  of  the  elements  which 
they  handle  and  not  in  their  nature.  Without  sentiment, 
substance  would  nearly  always  be  lacking.  Must  we  say 
in  company  with  many  eminent  legal  philosophers  that 
sentiment  is  the  substance  and  juridical  science  the  form 
of  laws?  I  do  not  think  so;  the  emotional  life  is  quite  as 
much  the  form  as  the  substance  of  the  law. 

That  appears,  at  first  glance,  incontestable  as  far  as 
legislation  is  concerned.  Passions  are  the  materials.  The 
legislator  finds  himself  in  the  presence  of  a  crowd  which 
manifests  moral  or  material  appetites;  he  must  examine 
their  legitimacy  and  the  means  of  satisfying  them.  But 
the  legislator  is  at  the  same  time  the  crowd  or  its  repre- 
sentative, and  we  have  seen  what  a  series  of  social  emo- 
tions he  normally  experiences.  The  object  of  the  legis- 
lative mechanism  is  no  doubt  to  submit  the  idea  which 
takes  hold  of  the  nerves  to  the  control  of  the  idea  which  is 
in  the  brain.  It  is  the  control  of  Philip  drunk  by 
Philip  sober.  But  this  control  is  made  under  the  lash 
of  new  emotions,  and  it  is  very  difficult  for  it  to  be  abso- 
lutely objective. 

The  work  of  the  legislator  and  of  the  philosopher  is  to 
transform  emotional  ideas  into  ideals  or  principles  which 


258  LAW  AND  EMOTIONAL  LIFE     [CH.  VII 

can  act  through  their  logical  force  and  be  protected  from 
contrary  impulses.  They  do  this  to  a  certain  extent,  but 
never  completely. 

Much  is  said  concerning  the  great  principles  by  which 
we  are  governed;  it  would  be  more  correct  to  say,  the 
great  sentiments.  One  of  these,  for  example,  has  been 
particularly  studied  and  applied,  and  to  it  we  are  in- 
debted for  the  majority  of  the  changes  of  the  nineteenth 
century.  This  is  the  sentiment  of  liberty. 

Liberty  is  a  sentiment  and  a  principle.  Now  a  prin- 
ciple and  a  sentiment  are  opposed  to  each  other,  and  in 
spite  of  the  praiseworthy  efforts  that  have  been  made  in 
this  direction,  the  two  have  never  been  able  to  coalesce. 
And  yet  the  labor  of  liberalism  is  perhaps  the  most  ad- 
mirable thing  in  the  nineteenth  century.  From  high  to 
low  in  the  intellectual  scale,  from  the  philosopher  to  the 
practical  man,  there  has  been  an  attempt  to  develop  the 
content  of  the  idea  of  freedom.  It  has  been  studied  in 
its  justification  and  in  its  abstract  extension,  and  classified 
according  to  its  principal  applications. 

Political,  economic,  religious,  intellectual  and  moral 
liberty  have  been  differentiated.  It  has  been  treated  by 
every  method  of  formal  or  experimental  logic,  without 
resulting  in  the  possibility  of  robbing  it  of  the  emotional 
character  which  has  belonged  to  it  from  the  beginning. 
We  are  subjected  to  suffering  and  tyranny  when  any  one 
tries  to  force  us  to  do  something  that  is  disagreeable  to 
us  or  when  we  are  prevented  from  doing  what  gives  us 
pleasure.  Our  sentiment  again  revolts  whenever  one  per- 
son tries  to  impose  upon  another  restraint  in  regard  to 
these  same  acts.  "Do  not  permit  to  be  done  unto 
others  what  you  would  not  wish  to  be  done  unto  you," 
says  the  sentiment  of  freedom.  The  logic  of  freedom 
would  say  quite  differently,  "  Do  not  do  unto  others  what 
they  would  not  wish  done  unto  them."  Rationally,  one 
has  to  assume  the  psychological  point  of  view  of  another 


§3]  INFLUENCE  ON  THE  LAW  259 

in  order  to  know  in  what  instance  one  may  allow  that 
other  to  act  on  his  own  initiative.  This  is  sometimes  done 
but  not  always.  The  majority  of  people  are  accustomed 
to  remain  entirely  independent  in  certain  acts  of  their 
lives;  the  least  restriction  that  the  law  might  impose  in 
this  respect  would  appear  inadmissible  to  them.  As  re- 
gards other  acts,  liberty  is  measured  out  to  them  very 
strictly  without  their  being  conscious  of  the  fact.  In  trav- 
eling in  different  countries,  it  is  seldom  that  one  does  not 
encounter  certain  provisions  which  appear  annoying  to  no 
purpose;  one  wonders  how  free  men  can  submit  to  such 
tyranny.  With  a  little  more  reflection,  it  is  perceived 
that  liberty  is  everywhere  a  relative  thing,  because  it  is 
everywhere  a  sentimental  thing.  People  come  into 
mutual  collision  over  sentiments  which  they  call  by  the 
same  name  because  the  content  of  these  sentiments  is 
concrete,  and  sentimental  logic  is  very  different  from 
formal  logic. 

A  lawyer  in  a  free  country  is  said  to  have  defined  liberty 
as  the  obligation  to  obey  the  law.  Such  a  paradox  is 
explained  by  the  fact  that  he  consulted  his  impressions 
and  not  his  reason.  Obedience  to  the  law  not  having 
been  troublesome  to  him,  he  could  not  conceive  emo- 
tionally that  it  could  ever  be  tyrannical.  The  majority 
of  those  who  contribute  directly  or  indirectly  to  the  making 
of  laws  judge  according  to  their  emotional  experience; 
and  consequently  legislative  labor  is  sentimental  in  its 
form  as  well  as  in  its  substance. 

Juridical  labor  is  equally  so.  The  interpreter  of  the 
text  ought  not  to  allow  his  personal  impressions  to  pass 
into  his  work ;  but  he  is  obliged  to  respect  the  psychological 
character  of  the  legislator.  If  the  latter  has  fashioned  a 
work  of  passion,  he  cannot  make  it  a  work  of  cold  justice. 
He  shares  neither  the  hatreds,  nor  the  affections  of  po- 
litical parties,  and  makes  them  as  slight  as  possible,  but 
if  they  are  clearly  expressed  in  the  law,  he  cannot  say  that 


260  LAW  AND  EMOTIONAL  LIFE     [CH.  VII 

they  are  not  there.  Suppose  that  a  legislator  makes  of 
certain  legal  provisions  a  weapon  of  warfare  and  revenge 
against  a  certain  class  of  citizens;  the  interpreter  ought  to 
say  to  the  individuals  concerned,  "You  were  treated  thus 
because  you  were  hated."  For  if  he  says  anything  else 
and  attempts  to  present  the  law  as  a  work  of  impartial 
philosophy,  he  does  not  pacify  those  who  are  particularly 
affected,  but  destroys  principles  and  subverts  juridical 
logic  to  boot.  In  fact,  judges  and  lawyers  do  a  little 
one  way,  a  little  the  other.  They  treat  political  passion 
both  as  sentiment  and  as  reason.  It  is  difficult  to  give 
examples  here,  not  that  they  are  rare,  but  because  they 
touch  a  little  too  closely  on  practical  politics,  from  which 
we  always  prefer  to  keep  at  a  distance. 

The  danger  for  juridical  science  is  not  in  the  presence 
of  sentiment  in  the  law,  but  in  the  skill  with  which  it  con- 
ceals itself.  As  long  as  it  is  hidden,  one  cannot  know 
whether  it  is  to  be  commended  or  condemned.  For  the 
historian-jurist  to  make  no  attempt  to  penetrate  into  the 
emotional  life  of  a  people  is  to  avow  his  impotence  to  un- 
derstand the  progress  of  the  law. 

BIBLIOGRAPHY 

WUNDT,  Elements  de  psychologic  physiologique;  HERBERT 
SPENCER,  Principles  of  Psychology;  BERGSON,  Essai  sur  les  donnees 
immediates  de  la  conscience;  J.  SULLY,  The  Human  Mind;  RIBOT, 
Psychologic  des  sentiments,  pp.  108,  110,  177,  195;  La  memoire 
affective,  in  Revue  philosophique  (1884,  II,  376;  1907,  LXIV,  588); 
La  logique  des  sentiments,  pp.  23,  35,  37. 

DUMONT,  Theorie  scientifique  de  la  sensibilite;  RAUH,  De  la 
methode  dans  la  psychologic  des  sentiments,  pp.  69,  207;  FERE, 
Pathologic  des  emotions,  pp.  93,  102,  318;  GR ASSET,  Introduction 
physiologique  a  1'etude  de  la  Philosophic,  p.  83,  chap.  XI;  L'emotion 
et  la  mimique;  Mosso,  La  peur;  DUMAS,  La  tristesse  et  la  joie; 
MAIRET,  La  jalousie,  Etude  psychologique,  physiologique  et  clinique. 

LANGE,  Les  Emotions;  WILLIAM  JAMES,  Theory  of  the  Emotions; 
SERGI,  Les  Emotions;  BAIN,  The  Emotions  and  the  Will;  PAULHAN, 
Les  phenomenes  affectifs  et  les  lois  de  leur  apparition;  ZIEHEN, 


§3]  INFLUENCE  ON  THE   LAW  261 

Leitfaden   der  physiologischen   Psychologic;   JODL,   Lehrbuch   der 
Psychologic;  SOLLIER,  Le  me'chanisme  des  emotions. 

FOUILLEE,  La  psychologic  des  ide"es  forces;  POLETTI,  Del  senti- 
mento  come  movente  dell'  umana  azione;  REE,  Entstehung  des 
Gewissens;  WESTERMARCK,  The  Origin  and  Development  of  the 
Moral  Ideas;  KUHLENBECK,  Zur  Psychologic  des  Rechtsgefiihls,  in 
Archiv  f.  Rechts-  und  Wirtsch.-Philosophie,  I,  pp.  5,  9;  RUMELIN, 
Reden  und  Aufsatze  (1875);  BEROLZHEIMER,  System  der  Rechts-  u. 
Wirtschaftsphilosophie,  vol.  I,  p.  312. 


CHAPTER  VIII 
LAW  AND  THE  INTELLECTUAL  LIFE 

51.    INTRODUCTION.— §2.    LOGIC    AND    SENTIMENT.  — §  3.    DIF- 
FERENT FORMS  OF  THE  INTELLECTUAL. 

§  1.  Introduction.  When,  several  years  ago,  my  emi- 
nent master,  Meynial,  proposed  the  Problem  of  the  Role  of 
Logic  in  the  Scientific  Formation  of  the  Law,  one  could  but 
wonder  how  so  important  a-  question  had  remained  so 
completely  hidden  from  jurists  and  philosophers.  Jurists 
and  philosophers  were  in  light-hearted  ignorance  of  one 
another.  No  doubt  well-informed  lawyers,  magistrates, 
and  professors  of  law  kept  in  touch  with  the  great  move- 
ments of  philosophy  —  in  order  to  be  able  to  talk  about 
them  when  the  occasion  demanded.  This  was  the  case 
in  France,  and  pretty  much  so  in  Germany.  A  witty 
colleague,  formerly  of  our  University,  compared  the  legal 
philosophers  of  Germany  to  Sonntagsreiter.1  As  for  pro- 
fessional philosophers,  they  completely  ignored  the  jurist. 
Legal  science  was  a  matter  of  conversation  only  among 
men  of  the  legal  profession. 

Thus  it  was  that  such  a  simple  question  as  "What 
place  has  Logic  in  the  Creation  of  Law?"  stated  in  an 
objective  fashion  (as  an  investigation  into  a  psychological 
reality  aside  from  any  question  of  value),  was  a  perhaps 
surprising  novelty,  for  it  stated  a  true  problem  of  legal 
philosophy  and  one  which  had  not  then,  nor  has  yet, 
been  exploited. 

If  the  conclusions  reached  by  the  eminent  professor  are 

1  [One  who  hires  a  horse  only  for  Sundays  to  make  his  appearance  in  the  fashion- 
able parade.] 

262 


§  1  ]  INTRODUCTION  263 

far  from  being  mine,  still  the  mechanism  of  juridical  logic 
was  analyzed  in  part  with  inimitable  clarity  and  finesse. 
He  proved  that  logic  is  not  wholly  in  the  law,  that  it  is 
rather  an  instrument,  and  that  the  principal  matter  of 
law  is  sentiment. 

In  the  opinion  of  jurists  of  the  old  schools,  the  legis- 
lator, the  judge,  and  the  theorist  ought  to  be  guided  by 
reason  at  every  step.  A  law  made  without  the  light  of 
reason  and  under  the  rule  of  the  passions,  would  therefore 
be  said  to  be  a  poor  law,  —  one  contrary  to  true  law.  This 
was  a  profound  illusion  from  which  we  have  entirely 
awakened.  From  all  time,  passion  and  sentiment  have 
had  their  say.  No  law  which  was  completely  estranged 
from  the  life  of  the  emotions  could  have  existed.  It  is 
an  established  fact,  and  one  which  is  gaining  greater 
prominence  every  day,  that  during  the  whole  course  of 
the  nineteenth  century  the  various  philosophical  move- 
ments reduced  farther  and  farther  the  role  of  conscious, 
individual,  logical  thought  to  the  advantage  of  sentiment, 
of  collective  thought,  or  even  of  such  rather  vague  entities 
as  "popular  genius,"  "conscience  of  the  people,"  "cus- 
toms and  general  tendencies  of  the  nation,"  "creative 
force  of  the  people,"  etc.  While  intending  to  explain 
everything,  these  formulas  really  explain  nothing  and 
elude  all  analysis,  a  quality  which  to  some  is  a  proof  of 
superiority,  but  to  me  seems  only  a  proof  of  intellectual 
laziness. 

We  are  going  to  resume  our  analytical  labor  by  at- 
tempting to  fix  the  relations  between  the  emotional  and 
the  intellectual  life  in  the  formation  of  the  law. 

§  2.  Logic  and  Sentiment.  Between  emotion  and  sen- 
timent we  have  made  a  distinction  which  seems  to  us  both 
an  essential  and  a  happy  one.  Sentiment  is  a  capacity  for 
emotions  which  may  or  may  not  become  realized.  If  we 
love  anyone  we  are  inclined  to  rejoice  in  his  happiness  and 
grieve  at  his  unhappiness.  But  if  nothing  very  fortunate 


264  THE  INTELLECTUAL  IN  LAW    [Cn.vm 

or  unfortunate  befalls  him,  we  may  for  a  long  time  not  ex- 
perience any  emotion  in  regard  to  him.  Sentiments  are  ex- 
tinct volcanoes  which  it  is  a  mistake  to  consider  in  contin- 
ual eruption.  Now  if  emotions  act  directly  and  disturb  the 
logical  faculty,  if  the  emotions  have  their  own  logic  which 
is  not  rational  logic,  this  is  not  the  case  with  sentiments 
which  have  no  existence  in  themselves  and  could  not  act 
if  intelligence  did  not  create  for  them  an  existence  which 
is  fictitious  and  yet  essentially  rational. 

It  is  an  incontestable  fact  that  it  is  impossible  to  fore- 
see how  a  misfortune  will  affect  any  particular  individual. 
A  certain  person  may  receive  bad  news  with  indifference 
and  yet  will  be  overcome  later  by  crises  of  despair  which 
will  swell  and  subside  at  the  least  incident.  Grief  may 
be  very  acute  and  short-lived,  or  very  long  and  less  deep. 
We  say  of  a  widow  who  marries  again  a  short  time  after 
the  death  of  her  first  husband  that  she  did  not  love  him, 
a  statement  which  may  be  absolutely  false.  The  world 
of  the  emotions  is  entirely  foreign  to  the  reason  and  does 
not  lend  itself  to  any  logical  deduction.  But  this  in- 
coherence of  the  emotions  is  not  conducive  to  self-satis- 
faction. We  hide  it  even  from  our  own  thoughts  and  try 
to  feel  what  it  is  reasonable  that  we  should  feel  under 
any  particular  circumstances.  "He  was  my  friend  and 
I  ought  to  be  grieved  at  his  death."  A  very  intimate 
friend  ought  to  be  mourned  more  than  another  who  is 
less  intimate;  a  near  relative  more  than  a  distant  one; 
someone  who  has  been  kind  to  us  ought  to  be  regretted 
more  deeply  than  a  selfish  person.  So  the  world  of 
sentiment  is  in  reality  a  very  logical  construction  to  which 
all  the  processes  of  discussion  are  applied  and  are  appli- 
cable. Thus  H.  Poincare  could  write:  "From  the  mo- 
ment that  we  base  our  syllogisms  upon  one  of  those 
generous  sentiments  which  beget  morality,  it  is  this  sen- 
timent, and  consequently  morality,  which  we  must  en- 
counter again  at  the  end  of  every  chain  of  our  reasoning, 


§  3  ]          FORMS  OF  THE  INTELLECTUAL         265 

if  it  has  been  conducted  in  conformity  with  the  rules  of 
logic."1 

This  would  not  be  a  correct  observation  if  sentiment 
did  not  become  transformed  into  intellectual  matter. 

Now,  there  may  intervene  in  the  juridical  domain,  but 
under  very  different  circumstances,  irrational,  emotional 
logic,  and  rational,  sentimental  logic.  Of  the  first  we 
have  already  spoken;  to  it  we  must  attribute  occasional 
laws:  thus  we  assign  to  emotion,  arising  from  a  father's 
assassination  by  his  son,  the  Macedonian  senatus-con- 
sultum.  Rational  sentimental  logic  makes  of  love, 
friendship,  hate,  pity,  etc.,  veritable  intellectual  creations, 
to  which  we  may  apply,  in  turn,  formal,  legislative,  ju- 
ridical logic.  Now  it  is  nearly  always  this  intellectual 
conception  of  emotion  which  constitutes  juridical  matter, 
so  that  the  r61e  of  affectional  phenomena  in  the  creation 
and  formation  of  the  law  is  considerably  reduced  thereby. 

Thus,  when  the  law-maker  determines  what  ought  to 
be  the  normal  relations  of  the  affection  between  husband 
and  wife,  what  sacrifices  one  ought  to  make  for  one's 
children,  and  what  is  the  order  of  the  preference  of  the 
deceased,  etc.,  he  performs  a  work  which  is  purely  logical, 
in  spite  of  its  emotional  appearance. 

§  3.  Different  Forms  of  the  Intellectual.  "Emotional 
and  intellectual,"  and  "logical  and  illogical,"  form  two 
methods  of  classification  of  all  human  psychology.  But 
the  two  classifications  are  not  identical  and  whoever 
adopts  one  should  renounce  the  other.  To  set  in  opposi- 
tion to  each  other  "logic"  and  "sentiment,"  and  "il- 
logical" and  "intellectual,"  is  a  gross  error  which  we  must 
charge  against  many  works  of  widely  varying  character; 
even  some  which  make  a  strong  point  of  method. 

Let  us  guard  carefully  against  this  mistake.  There  is 
a  great  deal  of  logic  in  the  most  refined  sentimentality, 
but  especially  and  above  all,  there  is  a  great  deal  of  the 

1  Dernieres  Pens^os,  p.  240. 


266  THE  INTELLECTUAL  IN  LAW    [CH.VIII 

illogical  in  works  of  the  intellect.  Every  wrong  calcula- 
tion is  none  the  less  a  calculation,  all  false  reasoning  is 
none  the  less  reasoning.  A  confirmed  misanthrope  who 
saw  only  the  evil  in  the  sentimental  and  intellectual  as- 
pects of  humanity  asserted  that  "Man  is  more  stupid 
than  wicked."  For  my  part,  I  am  fully  convinced  that 
the  most  terrible  human  dramas  have  been  above  all  else 
gross  errors  of  logic.  But  to  call  irrational  logic  stupidity 
would  be  a  deep  injustice.  The  domain  of  the  irrational 
intellectual  is  immense.  It  imposes  itself  on  everybody; 
and  certain  regions  of  it  can  be  reached  only  by  a  high 
order  of  mentality. 

What  is  there  of  the  strictly  logical  in  the  law? 
Only  its  scientific  aspect,  the  employment  of  methods 
which  have  been  proved  in  the  mathematical  and 
physical  sciences;  e.g.,  deduction,  induction,  observa- 
tion, classification,  analysis,  and  synthesis.  The  "raison 
d'etre"  of  the  law  is  the  realization  of  economic  and  moral 
ends  in  accordance  with  the  idea  of  justice.  Such  a 
realization  may  be  pursued  scientifically,  but  the  choice 
of  economic  and  moral  ends  cannot  be  scientific.  We 
shall  call  these  intellectual  operations,  which  without 
being  scientific  are  indispensable,  investigations  into 
natural  law.  It  is  a  part  of  ethics.  These  moral  and 
economic  ends  must  be  ordered  in  accordance  with  the 
idea  of  justice.  This  ideal  of  justice  cannot  be  determined 
scientifically.  The  only  thing  which  can  reveal  it  to  us 
is  a  very  difficult  and  abstract  discipline,  one  which  de- 
mands the  greatest  intellectual  effort,  viz.,  metaphysics. 

A  large  portion  of  the  intellectual  operations  necessary 
to  the  construction  of  the  law  are  not  scientific.  We. 
need  not  blush  at  this  fact.  There  is  nothing  so  be  ashamed 
of  in  using  ethics  and  metaphysics,  if  only  we  know 
that  we  are  doing  it.  We  need  not  believe  a  word  of  those 
who  claim  to  have  found  a  scientific  and  object've  idea 
of  morality  and  of  justice.  Those  who  would  despise  the 


§  3  ]          FORMS  OF  THE  INTELLECTUAL         267 

law  for  this  reason  would  be  blind  indeed,  for  it  is  im- 
possible to  deal  with  humanity  in  any  capacity  whatever 
without  engaging  in  ethics  and  metaphysics. 

Investigations  into  natural  and  metaphysical  rights 
must  be  conducted  according  to  precise  rules.  We  may 
employ  therein  all  the  principles  of  logic;  we  may  make 
mistakes,  discuss  and  correct  them.  In  such  investi- 
gations, all  the  faculties  may  be  exercised.  They  are 
rational  without  being  scientific. 

Therefore  if  the  formation  of  the  law  cannot  be  effected 
upon  a  scientific  basis,  it  might  be  upon  a  rational  one. 
But  it  is  not  so  in  fact.  The  law  contains  a  great  deal  of 
what  is  intellectually  irrational,  for  the  very  simple 
reason  that  the  law  is  riot  made  by  and  for  people  who 
know  how  to  reason  perfectly.  Every  one  goes  as  far  as 
he  can  in  the  path  of  logic;  sometimes  this  is  not  very  far. 
This  is  an  inevitable  and  incontestable  fact.  Not  to 
take  it  into  account  would  be  to  try  and  close  one's  eyes 
to  the  truth.  Man  may  be  deceived  through  passion 
and  self-interest.  But  he  may  also  be  deceived  through 
mental  weakness.  The  masses  cannot  get  very  far  into 
the  domain  of  the  abstract  without  going  astray.  In 
order  to  be  always  intellectual,  its  psychology  will  often 
be  entirely  irrational.  Moreover,  the  study  of  this  ir- 
rational intellectuality  is  very  interesting.  We  shall  be 
guided  in  this  study  by  very  profound  and  positive 
minds,  although  we  may  not  reach  identically  the  same 
conclusions  as  any  of  them. 


CHAPTER  IX 
THE  DISEASES  OF  LEGAL  THINKING 

§  1.  GENERAL  CHARACTERISTICS  OF  DISEASES  OF  THINKING.  — 
§  2.  PRINCIPAL  TYPES:  (I)  CREDULITY;  (II)  LANGUAGE  MYTHS; 
(III)  HISTORICAL  MYTHS;  (IV)  FASHION.  —  §  3.  DISEASES  OF  THOUGHT 
AND  LEGAL  DEVELOPMENT:  (I)  THE  MYTH  AS  A  FACTOR  IN  EN- 
ERGY; (II)  MYTHICAL  PRINCIPLES;  (III)  THEIR  DIFFERENT  AS- 
PECTS.—§4.  THE  MYTH  AND  LEGAL  FICTIONS:  (I)  THE  RATIONAL 
ELEMENT  IN  A  FICTION;  (II)  MYTHICAL  TERMS  AND  EXPRESSIONS 
IN  LAW. 

§  1.  General  Characteristics  of  Diseases  of  Thinking. 
Very  little  observation  is  sufficient  to  establish  the  fact 
that  men  very  often  reason  falsely  on  any  and  every  sub- 
ject. In  spite  of  his  utmost  care  and  greatest  efforts, 
the  most  vigorous  thinker  will  not  deal  with  even  a  com- 
paratively simple  subject  without  showing  evidence  some- 
where of  insufficiency,  contradiction  and  incoherence. 
What  then  shall  be  said  of  electoral  assemblies,  of  popular 
assemblies  which  prepare  the  laws,  of  the  courts  where 
the  pleas  of  counsel  pave  the  way  for  the  judgments, 
and  even  of  the  jurist  who  works  more  tranquilly,  to  be 
sure,  but  is  no  more  certain  to  examine  thoroughly  all 
the  questions  with  which  he  deals? 

Let  us  not  deceive  ourselves.  The  domain  of  the  il- 
logical, of  error,  is  incomparably  greater  than  that  of  the 
logical,  the  rational,  the  true.  We  must  not  consider 
error  as  a  deplorable  accident,  but  as  a  psychological 
necessity  for  which  no  one  is  responsible.  We  must  not 
fight  against  it,  at  least  not  until  we  understand  its  nature. 
It  would  be  taking  trouble  for  nothing  and  would  not, 
perhaps,  be  profitable.  We  must,  on  the  other  hand, 

study  it  objectively  and  above  all  else  with  a  scientific 

268 


§  i  ]  GENERAL  CHARACTERISTICS  269 

purpose;  but  also  indirectly  from  a  utilitarian  standpoint, 
in  order  to  appreciate  and,  if  need  be,  to  correct  it. 

But  is  such  a  study  possible  ?  There  is  not  one  way  of 
deceiving  ourselves;  there  are  thousands  of  ways.  There 
is  not  one  error;  there  are  thousands  of  different  errors 
which  constitute  very  different  psychological  phenomena. 
We  deceive  ourselves  through  passion  and  emotional 
reasoning;  we  deceive  ourselves  through  self-interest  and 
sophism ;  finally,  we  may  deceive  ourselves  through  simple 
logical  defectiveness. 

We  mean  to  study  now  only  the  errors  in  this  last  cate- 
gory, —  those  which  are  purely  intellectual.  Even  these 
purely  intellectual  mistakes  are  of  the  most  varied  na- 
ture. It  would  be  impossible  perhaps  to  make  a  complete 
classification  of  them  and  the  result  would  not  be  very 
interesting.  All  of  them  may  appear  in  juridical  materials ; 
but  the  majority  have  an  importance  which  is  entirely 
occasional.  Thus  it  is  that  no  juridical  monument  of 
any  importance  is  free  from  provisions  and  texts  which 
are  due  to  inattention,  distraction,  or  forge tfulness  — 
sometimes  quite  gross  —  on  the  part  of  him  who  framed 
the  law.  These  mistakes  cannot  always  be  remedied 
and  public  and  private  interests  may  suffer  through  them. 
The  text  remains  a  text  even  when  it  has  been  badly 
framed. 

But  errors  of  this  kind  are  entirely  accidental.  An 
effort  of  attention,  a  more  detailed  examination,  may 
eradicate  them  from  the  drafting  of  laws. 

There  are,  on  the  other  hand,  some  kinds  of  error  which 
seem  to  be  the  essence  of  real  human  thought.  We  are 
constantly  coming  upon  them  at  all  times  and  in  all 
places.  If  we  examine  into  their  mechanism,  we  shall 
realize  that  they  are  necessary  and  that  it  would  be  well- 
nigh  impossible  to  abolish  them.  These  vices  of  our 
mental  activity  are  no  longer  anomalies;  they  play  the 
part  of  a  social  and  intellectual  function.  We  shall  desig- 


270         DISEASES  OF  LEGAL  THINKING    [Cn.  IX 

nate  them  "diseases  of  thought,"  without  using  the  term 
in  any  derogatory  sense. 

These  defects  are  certainly  not  diseases  of  the  mind, 
for  they  are  produced  in  the  most  sane  and  robust 
minds.  But  thoughts  of  this  nature  are  certainly  dis- 
eased thoughts,  for  nothing  justifies  them  even  in  the 
intelligence  of  the  one  by  whom  they  are  expressed.  They 
are  the  atrophied  products  of  an  intelligence  which  could 
not  bring  its  ideas  to  maturity.  They  have  always  be- 
wildered the  psychologist,  who  has  extricated  himself 
from  this  difficulty  by  appealing  to  the  passions,  the 
emotions,  and  self-interest,  the  classical  sources  of  un- 
reason. But  though  obviously  self-interest  and  passion 
do  throw  the  intellect  off  the  track  easily,  yet  we  must 
not  forget  that  this  happens  almost  as  easily  when  the 
intellect  acts  quite  alone  and  aside  from  any  emotional 
intervention. 

It  may  be  recalled  that  in  1899  there  was  a  furious  dis- 
cussion of  the  question  as  to  "the  end  of  the  century." 
A  great  many  people  held  at  any  cost  that  the  year  1900 
was  the  first  of  the  twentieth  and  not  the  last  of  the 
nineteenth  century.  The  discussion  assumed  extravagant 
proportions  on  both  sides.  Appeals  to  history  and  as- 
tronomy were  made,  notwithstanding  the  fact  that  his- 
tory and  astronomy  were  quite  foreign  to  the  quarrel. 
Nevertheless,  those  who  expressed  so  many  contradictory 
opinions  could  have  agreed  in  counting  a  dozen  oranges  or 
a  hundred  oxen.  There  could  have  been  no  passion  nor 
interest  involved  in  this  particular  instance.  Why  so 
many  incoherent  discussions  upon  so  simple  a  problem? 
The  explanation  is  that  the  public  had  put  its  foot  into 
one  of  those  traps  of  thought  which  are  so  inoffensive  in 
appearance  and  yet  can  paralyze  the  mind  so  definitively. 
My  eminent  colleague  Millioud  successfully  disentangled 
its  essential  characteristic:  "Confusion  of  the  sign  with 
the  thing  signified."  To  change  the  number  of  a  century 


§  2  ]  PRINCIPAL  TYPES  271 

in  a  date  —  something  which  happens  only  Jonce  every 
hundred  years  —  is  not  the  same  as  changing  the  century, 
something  which  also  happens  only  once  every  hundred 
years,  nearly  at  the  same  moment.  The  good  sense  of 
many  practical  and  reasonable  minds  was  offended  because 
the  day  when  they  had  to  renew  the  date  upon  their 
letters  for  a  hundred  years  was  not  the  beginning  of  a 
new  century. 

We  cannot  neglect  such  symptoms.  Diseases  of  thought 
are  certainly  phenomena  of  individual  psychology,  at 
least  in  their  essence.  They  are  connected  with  the 
cerebral  force  of  each  individual  and  are  very  satisfactorily 
explained  by  the  single  fact  that  the  human  brain  is  not 
of  unlimited  strength;  that  this  strength,  moreover,  varies 
greatly  according  to  the  individual,  and  with  each  indi- 
vidual according  to  time  and  season.  Doubtless,  this 
weakness  will  be  more  accentuated  in  reunions  or  crowds 
than  with  the  man  who  reflects  for  some  time  and  alone. 
But  the  "raison  d'etre"  is  personal  in  each  instance. 

§  2.     Principal  Types  of  Diseases  of  Thought. 

I.  Credulity.  During  the  course  of  our  existence, 
our  own  personal  credulity  causes  us  some  vexation  of 
spirit,  but  that  of  others  may  console  us  to  a  large  extent. 
Poetic  or  prosaic,  mystical  or  positive,  intellectual  or 
practical,  —  all  natures  seem  on  a  par  in  the  face  of  this 
superior  and  immortal  force.  Scepticism  and  mistrust  do 
not  protect  us  from  it,  nor  does  experience.  Do  we  not 
see  every  day  bankers  and  business  men  rushing  into  the 
most  astounding  adventures?  Is  not  the  crafty  and  dis- 
trustful countryman  the  chosen  prey  of  the  swindler? 
And  philosophers !  Those  who  have  propounded  the  most 
substantial  tests  of  human  understanding  have  frequently 
evinced  amazing  simplicity  in  certain  of  their  convictions. 
Lord  Bacon,  whose  Novum  Organum  has  done  so  much  to 
improve  methods  of  observation,  relates  in  his  Syha 
Sylvarum  most  extraordinary  facts  which  a  little  observa- 


272          DISEASES  OF  LEGAL  THINKING     [  CH.  IX 

tion  would  have  enabled  him  to  appraise  at  their  true 
value. 

All  men  are  credulous;  not  in  the  sense  that,  since 
human  knowledge  is  limited,  every  one  makes  some  mis- 
takes; this  would  be  simple  indeed.  But  all  men  are 
credulous  to  such  an  extent  that  under  certain  circum- 
stances even  the  most  rudimentary  intelligence  is  amazed. 
Those  who  do  not  believe  that  they  are  credulous  are  poor 
psychologists;  they  do  not  know  how  to  observe  the  work- 
ings of  their  own  minds  and  are  therefore  even  more 
credulous  than  others. 

Man  is  credulous  in  every  matter  with  which  he  deals 
and  in  all  questions  which  concern  him.  In  our  most 
elevated  and  disinterested  conceptions  of  philosophic 
thought  as  well  as  in  every  detail  of  our  practical  life,  we 
march  on  from  one  dupery  to  another.  Any  defence  of 
our  intellectual  and  moral  interests  finds  us  as  unpre- 
pared as  does  a  defence  of  our  material  interests.  The 
law,  be  it  understood,  is  no  exception  to  the  rule.  The 
courtesan  succeeds  in  capturing  the  credulity  of  the 
monarch;  the  orator  who  has  the  attention  of  the  As- 
sembly gains  applause  by  taking  advantage  of  its  sim- 
plicity; the  lawyer  often  mocks  the  judge  who  has  decided 
in  his  favor.  We  must  not  neglect  to  mention  history  and 
historical  scholarship.  Not  to  speak  of  the  publication 
of  the  letters  of  Lazare,  how  many  learned  works  might  we 
cite  which  are  to  be  blamed  for  the  excessive  confidence 
of  their  authors  in  suspected  sources.  We  ought  not  to 
be  indignant  or  discouraged  at  the  pathetic  accord  with 
which  humanity  allows  itself  to  be  duped  time  and  again 
on  every  subject.  It  proves  that  credulity  is  not  a  vice 
but  a  cerebral  function.  A  world  composed  of  persons 
possessing  clairvoyant  powers  would  be  perhaps  —  very 
probably,  I  believe  —  a  monstrosity.  Would  it  be  an 
ideal  world?  Such  an  ideal  is  far  beyond  our  reach.  I 
shall  leave  to  others  the  task  of  discussing  whether  it 


§  2  ]  PRINCIPAL  TYPES  273 

would  be  worth  attaining.  It  is  more  to  our  purpose  to 
know  why  we  are  deceived  so  easily  and  are  so  powerless 
to  defend  our  interests  and  our  reason. 

(1)  Credulity  from  Ignorance.     One  of  the  causes  of 
credulity  is  ignorance.    It  is  very  evident  that  a  learned 
man  can  easily  deceive  an  ignorant  one.     Since  one  can- 
not be  learned  upon  every  subject,  it  is  necessary  to  have 
confidence  in  some  one  that  is  to  be  the  dupe  eventually 
of  some  one.    Moreover,  not  acknowledged  but  concealed 
ignorance  is  the  more  dangerous.    Take  the  case  of  the 
countryman  who  assumes  an  attitude  of  confidence  about 
something  that  he  does  not  understand  in  the  least.     In 
all  domains,  we  are  less  often  the  victims  of  our  lack  of 
knowledge  than  of  a  stupid  "amour  propre"  which  makes 
us  to  pretend  to  know. 

(2)  Credulity  from  Lack  of  Reflection.    Lack  of  reflec- 
tion is  also  a  very  frequent  cause  of  credulity.     Thus 
Flaubert  relates  of  himself  an  incident  which  illustrates  a 
tendency   toward   this   absent-mindedness.     He   was   a 
middle-aged  man  when,  upon  his  gardener  saying  to  him, 
"Go  to  the  end  of  the  garden  and  see  if  I  am  there,"  he 
proceeded  very  seriously  to    execute    the  commission. 
The  gardener  must  certainly  have  thought  that  Flaubert 
was  lacking  in  intelligence  and  that  he  was  very  much 
his  superior.    Now  it  is  precisely  because  Flaubert  was 
already  a  thinker  and  his  mind  was  occupied  elsewhere 
that  he  allowed  himself  to  be  entrapped  so  easily. 

(3)  Mystical  Credulity.    The  human  mind  is  possessed 
of  insatiable  curiosity.     Should  this  be  matter  for  re- 
proach?    But  because  of  this  curiosity,  what  the  mind 
has  once  learned  interests  it  much  less  than  it  did  at 
first,  or  not  at  all.    Something  new  and  something  which 
is  as  different  as  possible  from  what  it  already  knows  is  a 
necessity  to  it.    Hence  a  pronounced  taste  for  the  extraor- 
dinary, the  marvelous,  and  the  mystical.     A  phenom- 
enon will  appear  to  us  all  the  more  interesting  in  so  far 


274         DISEASES  OF  LEGAL  THINKING  [Cn.IX 

as  it  is  in  contradiction  to  all  established  laws.  This  tend- 
ency has  been  designated  "the  childlike  mind. "  No  doubt 
with  age  and  regular  work  one  finds  more  pleasure  in 
studying  the  most  commonplace  facts  than  in  marveling 
at  incomprehensible  phenomena.  The  mind  inclined  to 
mysticism  runs  the  greatest  risk  of  deceiving  itself  and 
of  being  deceived.  But  this  boundless  curiosity  is  also 
a  powerful  intellectual  stimulant.  It  is  easy  to  imagine 
that  since  superstition  is  the  opposite  of  the  scientific 
spirit,  the  periods  when  superstition  triumphs  under  the 
most  varied  and  extravagant  forms  ought  logically  to  be 
the  periods  of  darkness  and  of  the  arrest  of  human  thought. 
But  on  closer  view,  history  shows  us  that  quite  the  con- 
trary is  the  truth.  Times  of  great  intellectual  progress 
are  also  favorable  to  all  charlatanism.  We  are  as  eager 
for  philosophical  as  for  strange  and  unreasonable  thought. 
This  coincidence  is  particularly  remarkable  in  the  history 
of  the  Pythagorean  development.  In  proportion  as  these 
rationally  profound  doctrines  which  paved  the  way  for 
the  century  of  Plato  became  elaborated,  practitioners  of 
magic  flocked  from  all  directions  to  the  centre  of  philo- 
sophic thought;  in  the  customs  and  the  legislations  of  this 
period  the  sorcerer  played  the  most  important  part.  This 
is  not  an  exceptional  instance.  It  might  be  verified  in 
the  history  of  all  peoples. 

Belief  in  the  mystical  is  very  easily  associated  with  the 
greatest  logical  subtlety,  the  most  exact  precision  of 
judgment,  and  the  most  profound  intellectual  penetration. 
There  are  examples  of  this  which  are  so  celebrated  that 
it  is  unnecessary  to  cite  them.  Very  well-known  works 
have  given  quite  different  explanations  of  the  abnormal 
phenomena  of  the  subconscious.  Some  arrive  at  positive, 
plausible  conclusions  by  scientific  paths  which  seem 
preferable  to  those  of  authors  who  incline  more  or  less 
toward  mysticism.  But  if  we  judge  them  not  by  the 
value  of  the  conclusions,  but  by  the  value  of  the  intel- 


§  2  ]  PRINCIPAL  TYPES  275 

ligence  displayed,  we  sometimes  find  greater  clearness, 
argumentative  force,  and  mental  vigor  among  those  who 
draw  their  conclusions  with  a  mystical  significance  (we 
are  thinking  of  Dr.  Geley's  "L'etre  subconscient ")  than 
among  those  who  know  how  to  remain  always  upon 
"  terra  firma."  The  value  of  an  intellect  is  not  a  guaranty 
of  the  value  of  its  conclusions. 

(4)  Credulity  from  Limitation  of  Means  of  Testing. 
There  is  another  very  different  and  perhaps  still  more 
dangerous  kind  of  credulity.  He  who  is  a  victim  of  this 
has  nothing  with  which  to  reproach  himself  from  the  point 
of  view  of  logic,  unless  it  sometimes  be  with  a  rather  too 
great  self-confidence.  This  is  the  case  when  we  are  de- 
ceived by  making  our  own  perspicacity  work  against  us. 
In  the  practical  and  professional  life  we  all  employ  certain 
means  of  testing  to  verify  the  exactness  of  certain  facts. 
But  these  means  never  have  an  absolute  value.  They  are 
especially  valuable  to  those  who  are  ignorant  of  them; 
once  known,  they  often  become  entirely  useless.  A  sick 
person  who  has  carefully  studied  a  doctor's  book  can 
sometimes  deceive  a  physician  by  giving  in  detail  all  the 
symptoms  of  the  disease  which  he  wishes  to  attribute  to 
himself.  This  is  why  the  precautions  which  the  law  tries 
to  take  against  any  specified  kind  of  fraud  are  of  very 
doubtful  efficacy;  for  the  law  is  for  the  defrauder  an 
unmasked  adversary,  while  the  defrauder  is  for  the  law 
a  masked  adversary.  In  the  struggle  between  the  police 
and  malefactors,  the  struggle  is  more  equal ;  the  wiser  of 
the  two  will  dupe  the  other  by  his  own  methods.  Edgar 
Allan  Poe,  whose  genius  is  even  more  generalizing  than 
imaginative,  has  propounded  this  principle  in  a  detective 
story.  The  processes  of  investigation  and  of  criticism  are 
of  value  for  each  "so  far  as  his  labors  extend,"  that  is, 
in  the  circle  of  his  activities  and  capacities.  He  who  is 
beyond  this  circle  escapes  and  can,  at  his  ease,  mock  at  all 
the  precautions  that  have  been  taken  against  him. 


276          DISEASES  OF  LEGAL  THINKING     [CH.  IX 

We  have  distinguished  four  types  of  credulity:  (a) 
credulity  from  ignorance;  (b)  credulity  from  lack  of  re- 
flection; (c)  mystical  credulity,  and  (d)  credulity  which 
rises  from  a  limitation  of  the  means  of  testing.  The 
subject  is  certainly  not  exhausted.  We  may  definitely 
conclude,  nevertheless,  that  it  is  a  question  of  very  varied 
and  inevitable  psychological  phenomena.  Of  course  we 
must  combat  the  errors  which  result  from  them  wherever 
we  come  upon  them,  but  without  deceiving  ourselves  into 
believing  that  we  can  destroy  the  root  of  the  evil.  For 
him  who  studies  human  psychology  and  psychology  of  the 
law,  which  is  one  of  its  branches,  credulity  is  an  intel- 
lectual and  irrational  function,  —  an  element  of  individual 
and  collective  thought  which  is  very  evident  and  very 
easily  observed  and  analyzed.  We  encounter  it  at  every 
step  of  juridical  development. 

II.  Language  Myths.  Those  narrations,  always  full  of 
imagery,  often  poetic,  and  sometimes  incoherent,  that 
form  the  basis  of  different  mythologies,  seem  to  reveal 
the  existence  among  primitive  peoples  of  an  extraordinary 
imaginative  power  and  an  exuberant  fancy  accompanied 
by  a  very  pronounced  taste  for  the  marvelous.  But  in 
the  oldest  mythologies  and  in  the  oldest  versions  of  various 
mythological  narrations,  incoherence,  numberless  contra- 
dictions, and  contempt  for  the  most  elementary  logic  are 
the  dominant  features.  We  cannot  be  astonished  that 
the  various  primitive  peoples  have  believed  in  supernatural 
beings,  that  to  these  beings  they  have  attributed  the 
qualities  and  actions  of  men  by  exaggerating  them  with  all 
the  power  of  their  imagination,  and  that  from  this  have 
sprung  the  fabulous  legends  which  we  find  in  nearly  every 
quarter  of  the  globe.  The  credulity  of  primitive  peoples 
cannot  be  a  matter  of  surprise,  and  it  is  not  the  mytho- 
logical side  which  interests  us. 

But  credulity  does  not  explain  the  looseness,  the  con- 
tradiction, and  the  incoherence  of  episodes  originally 


§  2  ]  PRINCIPAL  TYPES  277 

placed  side  by  side  without  any  logical  connection.  Certain 
mythologists  and  philologists  have  given  a  learned  and 
ingenious  explanation  of  this,  and  it  has  been  discovered 
that  this  explanation  is  of  value  not  only  in  the  interpre- 
tation of  the  history  of  religions.  It  reveals  to  us  a  par- 
ticular tendency  of  the  human  mind  which  has  existed 
from  time  immemorial  and  which  thinkers  of  the  ancient 
world  have  pointed  out  occasionally  without  suspecting, 
however,  its  role  in  the  development  of  civilization.  A 
rather  unexpected  reconciliation  has  taken  place  between 
mythologists,  sociologists,  jurists  and  philosophers.  From 
this  has  sprung  the  theory  of  myths,  no  element  of  which 
is  properly  mine,  not  even  its  application  to  the  formation 
of  law;  but  I  have  made  an  analysis  of  this  theory  which 
is  perhaps  different  from  that  of  any  other  author. 

(1)  The  Language  Myths  of  the  Ancient.  In  studying 
the  origins  of  Indo-European  mythology,  Max  Miiller 
seems  to  have  established  conclusively  that  primitive  nar- 
rations of  fables  sprang,  at  least  to  a  great  extent,  from 
the  awkward  handling  of  the  primitive  language,  —  from 
the  confusion  between  words  and  the  objects  represented, 
from  the  lack  of  understanding  of  abstractions  and  meta- 
phors and  their  transformation  into  divinities.  This  is 
what  he  has  called  "diseases  of  language." 

Thus  the  Vedas,  which  are  composed  of  liturgical  for- 
mulas and  metaphors  intended  to  celebrate  divinities  such 
as  the  stars  or  the  sacred  fire,  have  been  translated  from 
the  abstract  into  the  concrete  in  Brahmanical  literature. 
The  elements  of  the  Hindu  legend  of  the  flood  are  to  be 
found  in  their  entirety  in  the  Vedas,  but  the  idea  of  an 
actual  deluge  is  completely  foreign  to  them.  The  Vedas 
are  concerned  only  with  describing  the  ceremony  of  sac- 
rifice in  terms  abounding  in  images  which  were  later  in- 
terpreted as  real  facts. 

It  is  not  in  our  province  to  judge  whether  the  method 
of  Miiller  and  his  followers  is  justified  in  any  specific 


278         DISEASES  OF  LEGAL  THINKING     [Cn.  IX 

instance ;  still  less  does  it  concern  us  to  determine  the  pro- 
portion of  exaggeration  of  which  this  school  has  been 
guilty  in  trying  to  trace  back  the  whole  formation  of 
religious  legends  to  "diseases  of  language"  alone.  Doubt- 
less there  would  never  have  been  any  religion  without 
the  sentiments  of  hope,  fear,  the  love  of  the  mysterious, 
fancy,  the  spirit  of  organization  and  assthetic  impression- 
ism; and  it  was  fitting  that  each  factor  should  do  its 
part.  In  itself,  the  phenomenon  of  "diseases  of  language " 
(the  employment  of  abstractions  and  metaphors  by  certain 
minds  and  the  literal  and  concrete  translation  of  the  ab- 
stractions by  others)  is  an  incontestable  fact.  In  ancient 
times  some  saw  real  facts  where  others  had  intended  only 
to  formulate  symbolical  ideas.  Now  these  misunder- 
standings caused  by  metaphor  and  abstraction  have 
continued  throughout  the  whole  course  of  civilization 
and  in  every  domain  of  thought.  Abstraction  is  a 
matter  extremely  difficult  to  handle;  very  few  grasp 
its  exact  import.  Each  individual  translates  such  ab- 
stractions in  his  own  way  and  according  to  his  own 
intellectual  power. 

The  analogy  between  the  "language  myth"  of  ancient 
times  and  what  we  shall  call  "  the  modern  language  myth  " 
ought  not,  however,  to  be  exaggerated.  The  confusion 
formerly  arose  above  all  else  from  the  rudimentary  state 
of  the  language.  There  was  no  form  which  permitted  of  a 
distinction  between  the  concrete  and  the  abstract;  at- 
tributes were  easily  taken  for  beings  independent  of  the 
objects  qualified.  Thus  primitive  minds  pursued  the 
path  of  error  to  its  very  end.  The  metaphor  became  a 
reality  no  matter  how  absurd  and  devoid  of  interest  its 
concrete  translation  might  be.  If  the  celebrated  metaphor 
of  M.  Prudhomme  had  been  formulated  then,  "the 
chariot  of  State  sailing  over  a  volcano"  would  have  been 
presented  in  the  myth  as  a  real  chariot,  a  real  sea  and 
a  real  volcano, 


§  2  ]  PRINCIPAL  TYPES  279 

(2)  Modern  Language  Myths.  The  myth  of  the  present 
time  is  not  identified  with  this.  The  human  mind  and 
human  language  have  progressed.  We  no  longer  take 
metaphors  and  abstractions  for  physical  beings.  We 
know  that  Reason,  Justice,  Goodness  or  Equality  has  not 
a  head  and  arms  and  legs.  Here  we  see  enormous  pro- 
gress from  the  point  of  view  of  plain  common  sense. 
There  are,  on  the  other  hand,  some  abstractions  which  are 
understood  in  nearly  the  same  way  by  everybody.  Such 
are  physical  abstractions  as  color,  size,  length  and  breadth. 
Some  intellectual  and  moral  abstractions  retain  a  certain 
degree  of  precision  for  the  majority  of  persons.  But 
there  are  others  whose  names  assume  an  existence  inde- 
pendent of  the  senses,  or  which  even  dispense  with  the 
reasoning  faculty  altogether.  A  word  takes  its  own  inde- 
pendent course,  quite  like  a  mythological  god;  it  has  its 
hour  of  triumph  and  of  defeat,  it  is  revealed  by  turns  as 
human  and  beneficent,  as  tyrannical,  cruel  or  weak,  with- 
out being  at  all  restricted  in  its  incessant  evolutions  by  its 
rational  content. 

(a)  Liberty.  "When  we  have  once  found  the  means  of 
catching  the  masses  with  the  bait  of  liberty,  they  follow 
blindly  provided  they  only  understand  the  name  of  it," 
said  Bossuet  a  propos  of  the  English  Revolution.  Since 
then,  and  doubtless  long  before,  in  every  instance  Liberty 
has  followed  a  triple  course;  it  has  lived  and  influenced 
the  world  as  an  abstraction,  as  an  ideal  and  as  a  myth. 

As  an  abstraction,  it  has  undergone  the  logical  analysis 
which  has  shown  the  various  domains  to  which  it  is  ap- 
plicable, the  forms  which  it  takes  in  these  various  domains, 
and  the  limits  necessary  to  its  proper  realization.  Thus 
the  liberty  of  one  person  is  restricted  by  the  liberty  of  an- 
other; the  authority  of  a  judge  was  imposed  in  order  to 
maintain  equality  in  the  liberty  of  different  individuals. 
It  would  be  very  unjust  not  to  recognize  all  that  has  been 
gained  from  a  theoretical  and  practical  point  of  view. 


280          DISEASES  OF  LEGAL  THINKING   [  CH.  IX 

Much  of  what  was  the  rational  development  of  the 
idea  of  Liberty  now  sleeps  peacefully  in  the  silence  of 
libraries.  But  it  has  left  upon  positive  legislation  benefi- 
cent effects  which,  without  being  absolutely  certain,  we 
hope  to  be  definitive  as  they  are  substantial. 

It  is  none  the  less  true  that  by  the  side  of  Liberty,  the 
abstraction,  has  dwelt  Liberty,  the  myth;  and  that  in 
the  numerous  encounters  between  them,  the  myth  has 
conquered  the  abstraction.  The  history  of  all  revolu- 
tions, of  all  democracies,  and  of  all  government  by  dema- 
gogues will  lead  us  to  repeat  with  more  and  more  bitterness 
the  famous  saying  of  Bossuet :  What  despotic  terrors  has 
not  the  sacred  name  of  freedom  evoked!  "Citizens,  I 
arrest  you  in  the  name  of  Liberty,"  was  the  refrain  during 
the  French  Revolution.  We  must  acknowledge  that  the 
irony  was  not  entirely  unjust. 

Besides  we  must  excuse  the  masses  from  failing  to  recog- 
nize the  content  of  the  abstractions  which  they  have  set 
up  as  idols,  since  thinkers,  and  not  the  least  among  these, 
have  furnished  the  worst  examples  in  this  respect.  What 
insanities  have  we  not  tried  to  introduce  into  the  definition 
of  the  word  liberty?  "Liberty  is  the  ability  to  do  what 
we  ought  to  do,"  Montesquieu  said;  "the  ability  to  do 
good,"  "the  freedom  to  devote  one's  self  to  the  State," 
"the  freedom  to  take  part  in  public  life";  these  are  some 
of  the  definitions  of  other  authors.  Doubtless,  those  who 
have  expressed  themselves  thus  wished  to  comprise  moral 
considerations  in  these  vicious  formulas.  Were  they 
right  or  wrong?  That  is  their  affair.  But  they  have  ex- 
cluded themselves  from  the  domain  of  rational  logic  and 
perpetrated  pure  nonsense.  It  would  be  a  very  happy 
state  of  things  if  everyone  would  employ  his  liberty  to  do 
good,  to  do  what  he  ought  to,  etc.,  etc.,  but  it  has 
nothing  to  do  with  the  definition  of  Liberty.  It  is  exactly 
as  if  we  should  define  a  franc  as  "  a  piece  of  money  destined 
to  be  given  to  the  poor."  It  is  as  moral  to  give  francs  to 


§2J  PRINCIPAL  TYPES  281 

works  of  charity  as  to  employ  one's  liberty  to  do  one's 
social  duty;  nevertheless,  no  economist  has  given  an 
analogous  definition  of  money.  Which  proves  that  social 
philosophers  are  in  great  need  of  introducing  a  little  pre- 
cision into  their  thought. 

When  we  have  managed  to  make  an  abstraction  ex- 
press exactly  the  opposite  of  what  it  generally  signifies, 
in  other  words,  when  we  have  incorporated  the  word 
"duty"  into  the  definition  of  liberty,  its  rational  utility 
has  been  completely  destroyed;  a  myth,  an  irrational  in- 
tellectual force  has  been  created,  and  we  see  that  it  is  not 
the  people  alone  who  are  blameworthy.  To  deprive  a 
word  of  its  true  meaning  in  order  to  appropriate  its 
prestige  to  oneself  is  a  very  common  practice  in  all  poli- 
tics, and  the  progress  of  the  law  has  felt  its  effects  to  a 
considerable  extent. 

We  must  not  confound  the  idealization  of  an  abstraction 
with  its  transformation  into  a  myth.  To  idealize  is  to 
attribute  supreme  value  to  a  concrete  being  or  an  abstract 
conception.  But  to  idealize  does  not  prevent  us  from 
judging.  The  wolf  of  La  Fontaine  understood  very  well 
in  what  "Liberty"  consisted.  He  judged  it  upon  very 
positive  data,  and  his  conception  is  in  perfect  accord  with 
the  most  scientific  definition.  He  understood  it  and  he 
idealized  it;  he  placed  it  above  every  other  good.  He 
preferred  it  to  "thejight  to  do  his  duty,"  and  the  prospect 
of  the  bones  of  the  pullets  and  pigeons  did  not  turn  him 
from  his  choice. 

(b)  Solidarity.  The  myth  "Liberty"  having  grown  a 
little  hoary,  there  is  a  tendency  to  substitute  for  it  the 
myth  "Solidarity."  If  we  try  to  analyze  the  myth 
"Solidarity,"  it  is  not  for  the  purpose  of  criticizing  the 
ideals  of  altruism,  generosity,  benevolence,  and  human 
optimism,  which,  rather  confusedly,  to  be  sure,  range 
themselves  under  this  word.  This  is  an  example  of 
irrational  intellectuality,  —  a  lack  of  understanding  of 


282         DISEASES  OP  LEGAL  THINKING    [Cn.IX 

the  mechanism  of  abstraction  which  is  somewhat  different 
from  the  preceding. 

"Two  things  are  solidary,"  says  the  philosophical 
vocabulary  of  Goblot,  "when  one  is  not  independent  of 
what  affects  the  other."  This  definition  does  not  tell  us 
whether  the  dependence  has  to  be  reciprocal.  It  does 
not  seem  so  in  the  mind  of  the  philosopher,  for  he  adds  as 
an  example,  "Heredity  is  the  solidarity  of  successive  gen- 
erations." Now,  if  the  descendant  depends  upon  the  an- 
cestor, the  ancestor  does  not  depend  at  all  upon  the 
descendant,  at  least  upon  the  one  who  is  born  after  his 
death.  Nevertheless,  juridical  language  more  precise 
than  the  preceding  definition  always  sees  a  reciprocal 
relation  in  solidarity.  It  seems  to  me  difficult  to  deprive 
it  of  the  idea  of  reciprocity.  Let  us  then  define  solidarity 
as  "  a  reciprocal  dependence. "  We  have  thus  made  real  an 
abstraction  which  can  be  useful  to  us  in  the  study  of  con- 
crete reality. 

As  soon  as  we  try  to  apply  the  ideas  of  solidarity  to  the 
objective  examination  of  human  life,  solidaristic  and  in- 
dividualistic tendencies  reveal  themselves.  The  former 
carry  to  an  extreme  man's  reciprocal  dependence  in  all 
domains;  the  latter  give  more  importance  to  individual 
and  private  effort.  Moreover,  both  can  only  affirm  the 
phenomenon  of  human  solidarity,  but  they  differ  in  the 
appreciation  of  its  importance.  Both  are  true  to  the 
rules  of  logic.  But  the  believer  in  solidarity  goes  farther. 
"Mutual  dependence  between  men  brings  it  about  that 
some  can  be  happy  and  develop  only  if  others  can  also." 
This  assertion  goes  far  beyond  the  bounds  of  experience. 
It  would  be  very  lovely  indeed  if  all  men  could  be  happy 
together  and  if  the  happiness  of  one  could  exist  without 
the  unhappiness  of  another.  But  to  affirm  that  this  is 
always  the  case,  and  that  the  happiness  of  one  always 
creates  the  happiness  of  another  is  to  defend  too  ardently 
the  opposite  of  reality! 


§2]  PRINCIPAL  TYPES  283 

But  this  theory  of  solidarity  abounds  in  many  other 
logical  errors.  Some  valued  thinkers  regard  as  superior 
those  institutions  which  create  the  closest  bonds  between 
men.  This  confuses  what  is  and  what  ought  to  be.  What 
makes  a  myth  of  the  word  "solidarity"  is  the  inextricable 
confusion  between  different  conceptions  which  by  them- 
selves might  have  a  logical  or  a  moral  and  moralizing 
value. 

(c)  Forms  of  Government.  Forms  of  government  have, 
especially  in  France,  constituted  true  diseases  of  thought. 
Of  course,  it  is  legitimate  enough  to  have  well  considered 
and  even  instinctive  preferences  for  the  Republic,  the 
Monarchy,  the  Empire,  or  any  form  of  constitution  which 
one  wishes.  We  have,  however,  gone  somewhat  beyond 
the  limit  and  made  veritable  divinities  of  simple  words. 
Constitutional  questions  are  serious  ones,  no  doubt;  but 
there  are  thousands  of  others  equally  serious.  Moreover, 
precisely  because  we  are  dealing  with  serious  questions, 
it  is  quite  reasonable  to  hesitate,  to  follow  no  standard,  to 
have  no  precise  and  unalterable  opinion  in  political  mat- 
ters. This  is  a  truth  which  has  surprised  and  perhaps  will 
still  surprise  many  people.  The  type  of  man  who  was 
and  still  is  honored  is  the  one  who  was  born  in  a  party, 
has  never  discussed  its  principles,  has  sacrificed  everything 
to  its  triumph  and  dies  without  ever  having  changed  his 
opinions.  He  will  even  have  the  esteem  of  his  adver- 
saries, to  use  a  time-honored  formula.  But  he  who 
tries  to  search  for  the  realities  behind  the  labels,  and 
seeing  that  the  superiority  or  inferiority  of  any  par- 
ticular regime  is  purely  relative,  refuses  to  tag  himself 
with  any  constitutional  form  whatever,  falls  into  the 
disrepute  with  both  sides. 

The  juridical  domain  is  very  favorable  to  the  hatching 
of  myths.  A  principle  of  law  that  has  become  popular 
is  nearly  always  imperfectly  understood.  For  the  law 
lives  by  fictions,  and  a  fiction  is  nothing  more  than  a  meta- 


284       DISEASES  OF  LEGAL  THINKING    [CH.IX 

phor.  When,  in  order  to  characterize  an  absolute  mon- 
archy, we  present  the  will  of  the  king  as  the  supreme 
source  of  law  and  organization,  there  is  invented  a  psy- 
chical phenomenon  which  cannot  become  a  reality,  for 
the  most  authoritative  sovereign  is  able  to  influence  legis- 
lation only  to  a  very  limited  extent.  Sometimes,  he  is 
absolutely  uninterested  in  it,  but  the  principle  will  not 
be  changed.  He  will  preserve  as  his  motto:  "Thus  I  will, 
thus  I  order,  let  my  will  take  the  place  of  reason,"1  even 
when  the  weakness  of  his  character  or  the  liberality  of  his 
mind  would  prevent  his  committing  any  act  of  authority. 
The  sovereignty  of  the  absolute  monarch  is  only  a  meta- 
phor. 

The  "sovereignty  of  the  people  or  of  the  nation"  is  still 
further  from  reality.  For  —  aside  from  the  fact  that  an 
act  of  collective  will  is  difficult  to  conceive  —  very  few 
citizens  intervene  effectively  in  the  making  of  laws  and 
in  the  political  guidance  of  the  country.  As  long  as  a 
person  understands  what  it  is  to  which  he  is  adhering, 
he  is  not  the  dupe  of  words;  as  long  as  he  is  convinced 
that  every  juridical  principle  is  artificial  and  can  be 
replaced  only  by  another  principle  just  as  artificial, 
the  employment  of  myths  is  perfectly  legitimate.  Ju- 
ridical science  cannot  do  without  them.  Political  science 
may  also  be  guided  by  them.  A  constitution  with  refer- 
endum contributes  more  largely  to  the  idea  of  "national 
sovereignty"  than  does  a  constitution  with  purely  repre- 
sentative power.  But  no  organization  can  transform 
what  is  purely  metaphorical  into  reality.  Now  to  many 
minds  "national  sovereignty"  is  a  reality,  a  superhuman 
reality,  a  sort  of  divinity  to  which  one  ought  to  sacrifice 
one's  individual  existence.  It  is  a  veritable  "myth," 
springing  from  a  psychological  phenomenon  which  is 
very  analogous  to  those  which  gave  birth  to  the  old 
Aryan  myths. 

1  Sic  volo,  sic  jubeo,  sit  pro  ratione  voluntas. 


§2]  PRINCIPAL  TYPES  285 

III.  Historical  Myths.  With  the  "language  myth," 
which  results  from  the  misunderstanding  of  metaphors 
and  abstractions,  there  is  often  confused  a  category  of 
very  different  psychological  phenomena.  These  phe- 
nomena have  been  particularly  well  studied  by  George 
Sorel,  so  well  indeed,  that  they  might  be  termed  the 
Sorelian  myths,  if  it  were  not  slander  to  attribute  to  any- 
one a  paternity  which  he  would  not  perhaps  care  to  claim ; 
for  one  is  never  sure  of  interpreting  with  exactness  the 
thought  of  another,  no  matter  who;  and  the  Sorelian 
myth  which  I  wish  to  analyze  might  indeed  be  disowned 
by  its  inventor.  I  shall  therefore  call  it  "the  historical 
myth." 

There  is  a  force  in  history,  an  intellectual  and  irrational 
force,  namely,  the  belief,  the  faith  in  an  approaching 
event  which  retreats  little  by  little  because  it  is  extremely 
distant  or  even  out  of  our  reach.  This  is  the  illusion  of 
the  man  who  scales  the  mountain  and  believes  himself 
very  near  the  top;  of  him  who  is  the  victim  of  a  mirage, 
or  chases  the  rainbow;  this  is  "the  image  of  peoples  work- 
ing for  empty  nothingness,  the  victims  of  the  pride  of  a 
few."  At  its  foundation,  "the  historical  myth"  is  an 
irrational  conception  of  the  future.  Foresight  of  the 
future  escapes  us,  the  future  baffles  our  best  laid  plans, 
but  it  is  none  the  less  true  that  between  our  intelligence 
and  the  future  there  exist  certain  relations,  which  it  is 
irrational  not  to  take  into  account. 

Every  representation  of  a  future  event  is,  to  a  certain 
extent,  illusory  or  mythical,  for  things  never  come  to  pass 
exactly  as  we  have  foreseen  them.  Our  uncertainty  in 
regard  to  the  future,  the  mistakes  in  our  foresight,  are 
not  the  faults  of  our  thought,  provided,  however,  we  have 
observed  certain  rules.  We  must  not  prophesy  things 
which  are  contrary  to  good  sense,  and  impossible  or 
difficult  of  realization.  No  more  must  we  deceive  our- 
selves too  much  as  to  the  degree  of  probability  of  an 


286         DISEASES  OF  LEGAL  THINKING   [Cn.  IX 

event.  Faith  in  the  future  ought  not  to  be  blind.  Sane 
logic  demands  that  we  do  not  assert  as  certain  a  future 
which  is  doubtful.  Rash  foresight,  even  when  it  becomes 
realized,  belongs  to  the  domain  of  irrational  thought.  All 
prudent  foresight,  even  if  it  does  not  become  realized,  is 
justified  rationally.  Thus  Robida,  in  his  "Vingtieme 
Siecle,"  foresaw  aerial  navigation,  which  has  become  a 
reality.  He  foresaw  a  continual  lowering  of  the  rate  of 
interest,  which  has  not  become  a  reality,  but  in  which 
many  economists  of  his  time  believed.  These  two 
instances  of  foresight  were  equally  rational  and  all  the 
more  so  since,  as  the  work  was  an  imaginative  one,  the 
author  made  no  claim  to  infallibility. 

The  historical  myth  is  the  affirmation,  with  much  more 
energy  than  reason  permits,  of  a  doubtful,  sometimes 
even  an  unrealizable  future  event.  Sorel  indicates  as 
such  the  "catastrophe  myth"  of  Karl  Marx,  which  sup- 
poses the  sudden  disappearance  of  capitalism,  —  the 
"general  strike,"  by  which  productive  workmen  will 
impose  their  will  upon  their  employers.  Beliefs  of  this 
nature  have  always  existed.  Up  to  the  Middle  Ages  and 
even  to  the  Reformation,  the  conquest  of  the  Holy  Land 
was  of  this  character.  People  believed  firmly  that  this 
event  was  near  at  hand,  and  this  belief  had  an  influence 
upon  home  and  foreign  politics  in  the  different  countries. 
For  the  "historical  myth"  is  a  force  and  a  very  powerful 
force.  It  arouses  more  energetic  action  than  does  a 
reasonable  conviction;  infinitely  more.  No  one  doubts 
it  or  has  ever  doubted  it.  From  the  greatest  soldier  to 
the  most  insignificant  candidate  in  a  municipal  election, 
all  who  struggle  for  supremacy  assert  that  their  victory 
is  more  than  certain.  They  know  that  to  create  such  a 
belief  is  to  acquire  an  essential  element  of  success.  Man 
puts  forward  his  greatest  effort  only  when  he  is  convinced 
of  the  result ;  the  least  doubt  paralyzes  him. 

But  in  Sorel's  opinion,  the  myth  is  something  more. 


§2]  PRINCIPAL  TYPES  287 

This  firm  belief  in  a  future  event  is  expressed  in  a  brief 
formula  which  has  no  precise  logical  content,  but  is 
susceptible  of  becoming  translated  into  imagery.  The 
expression  "  general  *strike  "  ought  not  to  be  analyzed. 
It  brings  up  in  the  mind  of  each  workman  concrete  and 
varied  images  which  represent  the  submission  of  the 
employer  and  the  triumph  of  the  laborer.  Such  imagery 
is  an  inexhaustible  fund  for  the  imagination,  which  attaches 
to  the  myth  much  more  than  the  exact  and  definite  repre- 
sentation of  the  result  to  be  obtained.  Thus  the  ideas 
of  heaven,  of  hell,  and  of  the  end  of  the  world,  are  con- 
strued in  the  mind  by  more  or  less  aesthetic  pictures,  but 
to  define  these  ideas  in  rational  terms  is  almost  an  im- 
possibility. Sorel,  who  is  a  follower  of  Bergson,  sees  in 
this  a  philosophical  superiority,  for  these  "myths"  which 
appeal  to  instinct  and  not  to  reason  may  be  the  object  of 
a  knowledge  which  is  superior  to  rational  knowledge.  In 
my  opinion,  these  diseases  of  thought  seem  wholly  ex- 
plicable in  so  far  as  they  indicate  intellectual  defective- 
ness,  and  the  mysterious  force  which  may  dwell  in  them 
is  not  apparent  to  me,  although  it  seems  to  me  unwise  to 
assert  that  it  does  not  exist. 

These  psychological  phenomena  are  much  more  dis- 
tinctly emotional  in  their  character  than  the  "language 
myths."  They  are  illogicalities  and  by  this  right  con- 
stitute intellectual  facts.  But  they  are  very  often  ac- 
companied by  emotional  elements,  —  violent  desires,  and 
foolish  hopes,  which  set  in  vibration  all  the  nerves  of  the 
human  body.  They  arouse  the  passions;  they  may  also 
quiet  suffering.  The  myth  of  a  durable  peace  which  will 
succeed  merciless  war  softens  grief  which  without  it  would 
be  too  cruel.  In  such  instances  as  this  the  sternest 
logician  will  be  silent  and  allow  the  myth  to  accomplish 
its  beneficent  work.  The  historian  who  has  the  respon- 
sibility of  neither  the  present  nor  the  future  but  concerns 
himself  solely  with  understanding  the  forces  which  have 


288       DISEASES   OF   LEGAL  THINKING     [Cn.IX 

acted  in  the  past,  must  find  in  our  institutions  many  de- 
stroyed hopes,  often  many  absolutely  unreasonable  ones, 
to  which  generations  have  consecrated  their  lives. 

Man  goes  from  deception  to  deception,  and  this  is  per- 
haps not  an  evil.  A  mythical  conception  is  of  infinitely 
more  value  than  too  precise  and  well-studied  foresight. 
The  most  fortunate  event  can  only  become  realized  in  a 
single  manner  and  we  can  imagine  it  under  a  thousand 
different  forms.  Thus  if  the  general  strike  ever  becomes 
a  reality,  it  would  be  a  great  disillusionment  for  those 
who  desire  it  most.  We  should  scarcely  have  heart 
for  our  work  if  we  knew  exactly  what  would  be  its 
results. 

IV:  Fashion.  There  are  fashions  in  the  highest  meta- 
physical thought  as  well  as  in  the  smallest  details  of  dress. 
There  are  fashions  of  living  and  of  dying.  Certain  kinds 
of  activity,  certain  professions,  certain  intellectual  or 
moral  qualities,  and  certain  religious  beliefs  are  by  turns 
very  much  in  vogue  or  very  much  out  of  fashion.  There 
are  remedies  —  it  has  often  been  said  —  which  cure  only 
so  long  as  they  are  the  fashion.  Are  there  not  juridical 
fashions  also?  Beyond  all  dispute,  fashion  rules  here  in 
doctrines  as  well  as  in  practice.  It  determines  the  sub- 
stance and  the  form  of  the  law.  The  eminent  magistrate, 
the  celebrated  lawyer,  and  even  the  learned  jurisconsult, 
sacrifices  as  much  and  more  to  the  fashion  than  does  his 
wife,  however  worldly  she  may  be. 

In  the  development  of  juridical  schools  considerations 
of  this  nature  are  all  powerful.  Among  the  glossators  of 
the  twelfth  and  thirteenth  centuries,  who,  it  seems,  de- 
voted themselves  to  the  dry  and  arduous  study  of  the 
texts  of  Justinian,  this  desire  for  the  new  was  as  strong  as 
it  was  anywhere  else.  Works  rich  in  ideas  are  neglected 
and  give  way  to  flat  and  tiresome  productions  because  the 
former  are  too  developed  and  the  fashion  has  changed 
to  brevity  and  conciseness. 


§3]     EFFECT  ON  LEGAL  DEVELOPMENT     289 

"This  man  studied  to  state  great  doctrines  briefly, 
That  the  brevity  of  his  work  might  please  the  mod- 
erns."1 

Fashion  is  an  illusion  of  progress.  It  is  very  difficult 
to  judge  any  novelty  as  soon  as  it  presents  itself;  a  trial 
of  it  must  be  made  to  see  if  it  is  worthy  of  displacing  what 
already  exists.  When  the  experiment  proves  a  failure, 
and  it  appears  to  us  futile  to  have  made  it,  then  this  ex- 
periment may  have  been,  to  a  certain  extent,  perfectly 
legitimate.  Fashion  is  again  the  pleasure  of  changing  for 
the  sake  of  changing  through  weariness  of  what  exists, 
and  for  the  pleasure  of  marching  in  the  forefront  and  con- 
sidering others  backward.  It  is  again  perhaps  the  wish 
not  to  be  out  of  accord  with  one's  surroundings.  In 
every  instance,  it  is  a  phenomenon  of  the  irrational  action 
of  the  intellect,  —  a  disease  of  thought.  Its  influence  upon 
human  conceptions  has  been  established  too  long  a  time 
for  it  to  be  necessary  to  dwell  upon  it. 

We  have  examined  only  a  few  types  of  intellectual  de- 
fectiveness.  These  suffice  to  show  us  that  this  portion  of 
psychology  is  extremely  fertile.  Diseases  of  thought  are 
not  accidents  which  any  one  can  avoid  by  employing 
even  the  best  method  and  applying  it  with  proper  attention 
and  regard  for  details.  They  belong  to  the  nature,  if  not 
to  the  essence,  of  human  intelligence. 

§3.  ''Diseases  of  Thought"  and  Legal  Development. 
If  we  lay  it  down  as  a  principle  that  truth  is  always  good, 
and  error  always  evil,  we  must  conclude  therefrom  that 
it  is  to  be  regretted  that  the  development  of  the  law  has 
been  directed  in  great  part  by  forces  which  are  logically 
defective.  But,  in  itself,  truth  is  neither  good  nor  evil. 
The  true  and  the  good  are  two  ways  of  imagining  things 
and  between  them  there  is  no  necessary  relationship. 
Practically,  and  when  we  give  to  the  words  "good  and 

1  Hie  breviter  studuit  dogmata  magna  dare, 
Ut  brevitas  opens  possit  placere  modernis. 


290        DISEASES  OF  LEGAL  THINKING   [CH.IX 

evil  "  the  usual  and  purely  relative  meaning,  we  might 
believe  ourselves  to  be  warranted  in  affirming  that  it  is 
better  for  man  to  be  governed  according  to  rational 
principles,  than  to  allow  himself  to  be  influenced  by  words 
devoid  of  any  logical  meaning.  To  some  minds,  this 
proposition  would  seem  self-evident,  when,  in  reality,  it 
has  neither  deductive  nor  experimental  value.  A  law 
made  only  by  logical  minds  and  pursuing  by  logical  means 
ends  capable  of  realization  is  unknown  to  us.  Humanity 
without  its  "diseases  of  thought"  would  no  longer  be 
the  humanity  which  we  study.  As  well  unearth  the  habits 
of  the  unicorn  and  the  hippocampus. 

On  the  other  hand,  the  theory  of  irrational  intellectual 
activity  extricates  itself  from  the  difficulty  almost  en- 
tirely unaided.  We  construct  upon  the  most  absurd 
axioms,  reasonable,  practical  and  sometimes  even  in- 
genious institutions.  The  "national  sovereignty"  which 
Duguit  proposes  to  throw  aside,  has  been  —  so  he  proves  — 
a  myth  of  extremely  powerful  progressive  force.  George 
Sorel  also  sees  in  myths  a  source  of  fruitful  activity. 
Myths  have  their  detractors  and  their  enthusiastic  sup- 
porters. 

At  certain  periods  of  history,  the  disillusioned  lovers  of 
the  goddess  Reason,  asserting  that  her  part  in  the  history 
of  institutions  is  not  important,  try  to  discover  the 
identity  of  the  mysterious  contributor  to  whom  the  law 
owes  its  beneficent  and  harmonious  existence.  They  in- 
vent secret  forces,  instincts,  subconscious  states,  and 
institutions,  some  secret  intellectuality,  some  transcend- 
ent purposiveness  which  would  combine  the  poetry  of 
mystery  and  the  prestige  of  reason.  The  theory  of 
myths  directs  us  differently.  The  goddess  of  Unreason 
or  of  inferior  Intellectuality  appears  to  us  as  a  much  more 
positive  force.  She  can  hide  nothing  from  us;  she  alone 
can  give  us  the  solution  of  many  enigmas. 

It  is  certain  that  a  mistake  or  a  blunder  does  not  in- 


§3]     EFFECT  ON  LEGAL  DEVELOPMENT     291 

o        •* 

evitably  occasion  unhappiness,  and  the  truth,  happiness. 
There  are  instances  where  lies  may  bring  happy  results, 
and  such  instances  are  numerous.  To  conceal  danger 
may  be  a  duty,  at  least  a  praiseworthy  action.  Peoples 
are  like  individuals  in  this  respect.  "  Decipi  vult  vulgus." 
The  populace  wishes  to  be  deceived  because  it  needs  to  be. 
The  myth  may  often  be  a  salutary  error;  and  for  the  fol- 
lowing reasons: 

I:  The  Myth  as  a  Factor  in  Energy.  The  irrational, 
the  myth,  is  above  all  else  a  factor  in  energy,  a  quality 
which  recommends  it  to  modern  minds  which  love  energy 
for  the  sake  of  energy.  "Diseases  of  thought"  permit  a 
great  deal  of  acting,  a  great  deal  of  talking,  a  great  deal 
of  writing  and  very  little  thinking.  What  periodicals, 
parliamentary  treatises  and  lawyers'  speeches,  what 
collections  of  decisions  and  judgments,  might  never 
have  sprung  from  this  colossal  semi-intellectual  activity 
if  it  had  to  be  submitted  to  the  strict  rules  of  logic!  Myth- 
ical thought  works  tremendously  and  its  labor  is  sufficient 
for  everyday  life.  It  can  create  a  great  deal  because  it 
is  accessible  to  all  and  collaborates  with  all  because  it 
conceals  the  difficulties  of  abstract  thought,  and  because 
it  creates  a  belief  in  the  speedy  realization  of  the  most 
foolish  hopes.  No  one  would  be  willing  to  put  forth  tre- 
mendous effort  for  a  result  which  is  often  very  trifling. 
The  old  man  in  La  Fontaine's  fable  created  a  myth  when 
he  made  his  children  believe  that  he  had  buried  a  treasure 
in  his  field.  Thus  he  taught  them  the  value  of  'work,  and 
certainly  if  all  myths  produced  such  happy  results,  they 
might  be  pardoned  their  unreal  and  illogical  nature.  It 
is  none  the  less  true  that  the  sons  worked  because  they 
wered  eceived  and  would  not  have  worked  if  they  had  not 
been  deceived. 

All  myths  do  not  have  such  good  results.  Effort  does 
not  always  assure  success.  How  many  races,  how  many 
people  have  bungled  their  careers  by  not  knowing  how  to 


DISEASES  OF  LEGAL  THINKING     (Cn.  IX 

remain  quiet!  We  accuse  intellectuality  of  paralyzing 
action.  This  is  true  in  one  sense.  The  intellectual  man 
is  certain  of  more  things  than  is  the  man  of  action,  but  he 
also  is  more  scrupulous,  for  rational  logic  can  seldom 
guarantee  that  a  certain  course  is  the  only  good  one. 
Mythical  energy  chooses  arbitrarily  any  course  whatso- 
ever. If  in  opposition  to  one  myth,  contrary  myths  are 
set  up,  the  loveliest  scenes  of  incoherence  and  violence  may 
be  unfolded  to  the  great  delight  of  some,  and  the  confusion 
of  others.  Mythical  thought  is  always  more  disquieted, 
but  it  is  not  essentially  more  disquieting  than  rational 
thought. 

II:  Mythical  Constructions.  In  a  mythical  generality1 
there  is  much  beside  unreason.  The  myth  is  at  the  basis, 
but  generations  succeed  one  another  and  endeavor  to 
efface  everything  which  can  directly  offend  good  sense. 
The  story  of  Tom  Thumb  is  composed  of  absolutely  in- 
congruous notions:  a  poor  wood-cutter,  a  child  as  small 
as  one's  thumb,  children  lost  in  a  forest,  birds  which  eat 
bread,  an  ogre,  seven-leagued  boots,  etc.,  etc.  From 
these  data  are  built  up  narrations  which  are  at  first  in- 
coherent, but  by  degrees  better  and  better  arranged. 
The  bond  which  unites  these  diverse  ideas  seems  to  us 
very  natural,  since  the  story  is  now  logically  connected. 
Each  of  the  factors  in  these  data  was  simply  a  mistake  in 
language,  a  misunderstood  metaphor,  and,  nevertheless, 
the  rational  intellectuality  of  man  has  made  of  these 
ramblings  narratives  that  are  so  well  presented  that  in 
spite  of  their  fantastical  content  we  ask  ourselves  if  they 
are  not  really  true  at  bottom. 

The  case  is  the  same  with  moral  and  juridical  general- 
ities. Their  elements  have  often  been  in  the  beginning 
incongruous  and  opposed  to  common  sense.  But  a  series 

1  (The  author's  own  word  here  is  "construction."  The  nearest  equivalent  in 
English  is  "generality."  But  in  the  next  chapter,  where  the  term  is  more  elabo- 
rately treated,  it  has  been  rendered  "construction."  For  a  full  explanation  of 
its  meaning,  see  the  footnote  to  §  4  of  Chapter  XL  —  EoJ 


§3]      EFFECT  ON  LEGAL  DEVELOPMENT     293 

of  logicians  have  adjusted  them  to  one  another,  and,  by 
giving  them  subtle  explanations,  have  carefully  touched 
up  whatever  could  have  offended  the  general  intelligence 
and  in  the  end  presented  a  system  perfectly  rational  as  a 
whole  and  in  its  parts.  Nothing  of  the  mythical  remains 
except  a  small  element,  carefully  concealed  and  difficult 
to  discover,  and  if  we  do  not  discover  it,  we  may  imagine 
that  the  theory  has  an  absolute  value,  while  in  reality,  its 
value  is  purely  relative,  quite  as  relative,  indeed,  as  that 
of  other  theories  less  well- worked  out. 

The  "sovereignty  of  divine  law,"  once  admitted  as  a 
first  principle,  has  provided  ground  for  perfectly  rational 
and  indisputable  generality.  The  "social  function" 
myth,  a  corollary  of  the  "solidarity"  myth,  can,  by  be- 
coming combined  with  new  elements  of  a  different  nature, 
furnish  a  plan  of  social  organization  which  is  very  satis- 
factory from  a  logical  point  of  view,  so  long  as  we  do  not 
criticize  its  basis.  When  the  generality  is  no  longer 
satisfactory  to  us,  we  accuse  the  logician  of  having  mis- 
used the  principle  of  deduction.  This  is  a  deep  injustice. 
The  logician  did  all  that  he  could  do.  A  myth  was  fur- 
nished him  and  he  dressed  it  up  in  the  fashion  of  the  day ; 
he  could  do  nothing  else.  Moreover,  nothing  else  was 
demanded  of  him,  because  human  life  perhaps  does  not 
need  anything  else. 

Ill:  Proper  and  Improper  Aspects  of  the  Mythical 
Generality.  When  a  mythical  generality  has  been 
systematized  by  one  or  more  thinkers,  there  no  longer 
remains  in  it  anything  irrational  except  the  manner  in 
which  it  is  presented  —  its  pretense  of  being  what  it  is  not. 
It  is  a  fiction,  an  hypothesis,  perhaps  even  a  possibility, 
but  it  believes  that  it  possesses  the  characteristics  of 
reality,  objectivity,  and  necessity.  If  I  draw  conclusions 
from  a  principle  which  I  acknowledge  to  be  false  or  doubt- 
ful, I  am  perfectly  justified  in  reasoning  hypothetically. 
"All  men  are  good;  they  can  do  only  good,"  is  a  very 


294         DISEASES  OP    LEGAL  THINKING  [  CH.  IX 

dangerous  assertion.  By  putting  it  in  the  conditional, 
"if  all  men  are  good,  they  can  do  only  good,"  we  restore 
to  it  a  reasonable  meaning. 

The  political  theories  of  a  Saint  Thomas  Aquinas  would 
be  unassailable  if  he  claimed  to  construct  only  a  system 
as  tenable  as  any  other.  All  the  great  political  writers 
are  in  the  same  situation.  They  are  wrong  in  believing 
that  they  are  elaborating  doctrines  which  are  necessarily 
correct. 

Now,  among  individuals  as  among  peoples,  there  are 
those  who  doubt  themselves  and  those  who  are  rather  too 
self-confident.  Only  the  last  are  intellectually  inexcus- 
able and  practically  dangerous.  Under  the  most  diverse 
disguises  they  are  all  the  same  Torquemadas  of  Thought. 
The  others,  on  the  contrary,  are  easily  excused  for  em- 
ploying an  imperfect  intelligence  for  lack  of  a  better,  rel- 
ative principles  for  lack  of  absolute  ones,  and  fictions  in- 
stead of  unattainable  realities. 

In  one  of  the  most  beautiful  scenes  in  a  drama  of  the 
poet  Mistral,  we  read  of  galley-slaves  who,  chained  to 
their  benches,  sing  as  much  to  enhearten  themselves  as  to 
row  in  unison.  They  believe  they  see  the  light  of  a  fairy 
castle  to  which  they  seem  quite  near.  They  believe  they 
see  it;  they  are  not  sure,  it  is  perhaps  but  a  star.  They 
conclude  in  a  chorus  "Castle  or  no  castle,  let  us  row  as  if 
it  were  there."  Since  each  of  us  must  remain  chained  to 
his  galley-slave's  bench,  why  should  we  refuse  to  believe 
that  we  are  about  to  reach  the  marvelous  castle  of  the 
fairy  Serane?  We  believe  we  see  its  lights.  It  is  perhaps 
a  star  that  deceives  us,  but  what  does  it  matter?  "  Casteu 
o  noun  casteu,  fas&i  coume  s'i'  ere."  Mistral's  rowers 
create  for  themselves  the  only  truly  profound  and  philo- 
sophical conception  of  the  myth. 

§  4.  The  Myth  and  Legal  Fictions.  Legislative  and 
judiciary  powers  easily  allow  themselves  to  be  allured  by 
myths.  Doctrinaires  cannot  expel  them  from  the  jurid- 


§4]  LEGAL  FICTIONS  295 

ical  domain,  but  they  can  transform  the  "myth"  into 
"fiction."  A  great  deal  of  thought  has  been  devoted  to 
the  "legal  fiction."  Superficial  criticism  has  condemned 
it  without  a  hearing,  that  is  without  defining  it  or  ex- 
plaining why  it  is  worthy  of  condemnation.  Certain 
writers  have  labored  under  the  strange  delusion  that  the 
law  can  be  constructed  upon  objective  realities.  We  shall 
see  later  what  is  to  be  thought  of  this.  However,  we  af- 
firm in  advance  that,  quite  the  contrary,  juridical  the- 
ory is  all  the  more  objective  when  it  presents  itself  as  fic- 
titious, and  all  the  more  delusive  when  it  claims  to  do 
without  fictions. 

I.  The  Rational  Element  in  a  Fiction.  Fiction  is 
nothing  more  or  less  than  hypothetical  reasoning.  Start- 
ing from  facts  which  are  doubtful  or  false,  it  can  be  con- 
ducted with  as  much  rigor  as  argumentation  based  upon 
real  and  certain  facts.  The  exact  sciences  —  notably  ge- 
ometry —  make  constant  use  of  fictitious  reasoning.  Ju- 
ridical fiction  is  therefore  not  to  be  condemned,  provided 
it  points  out  as  artificial  what  is  artificial. 

What  the  legislator  affirms  as  a  dogma,  the  legal  writer 
considers  as  an  hypothesis.  He  does  not  take  the  respon- 
sibility of  any  affirmation.  At  every  turn  the  legislator 
proclaims  as  useful,  necessary,  or  sacred,  principles  which 
he  could  not  know  how  to  justify  logically  as  such.  When 
the  jurisconsult,  whose  business  is  not  to  appraise  but  to 
interpret,  approves  or  finds  fault  with  the  thought  of  a 
legislator,  or  adopts  toward  the  law  a  respectful  or  a 
sceptical  attitude,  he  lays  down  principles  only  as  fictions. 
The  French  law  lays  down  the  principle  of  the  superiority 
of  the  husband  to  the  wife  and  gives  him  supremacy  in 
the  management  of  the  household.  The  jurisconsult  can 
not  fail  to  take  this  into  account,  otherwise  he  would  not 
be  writing  on  French  law.  In  making  the  application  of 
the  principle  to  any  particular  case,  he  performs  purely 
and  simply  an  act  of  hypothetical  reasoning  whose  logical 


296        DISEASES  OF  LEGAL  THINKING   [Cn.IX 

value  is  entirely  independent  >of  the  principle  itself.  If 
the  man  is  in  reality  less  fitted  than  his  wife  to  the  con- 
duct of  their  affairs,  the  theorist  is  not  affected  by  the 
fact,  for  it  is  not  for  him  to  declare  the  contrary.  All 
that  ought  to  be  deduced  logically  from  the  marital  su- 
premacy, he  will  deduce,  for  that  is  his  first  duty. 

Only,  theoretic  constructions 1  of  positive  law  are  very 
seldom  truly  logical  deductions;  they  are  artificially  logi- 
cal constructions.  Their  conclusions  are  generally  con- 
nected with  the  principle  by  extremely  complex  bonds 
which  are  logically  simple  in  appearance  only.  From  the 
idea  of  marital  authority  or  superiority,  there  is  deduced 
as  a  conclusion,  the  impossibility  of  a  woman's  figuring  in 
a  civil  suit  even  as  a  defendant.  It  would  be  quite  im- 
possible for  formal  logic  alone  to  connect  the  concrete  ap- 
plication with  the  principle  by  the  bond  of  necessity.  But 
the  theorist  is  not  wrong  in  stating  the  principle  intended 
by  the  law,  "the  wife  owes  obedience  to  her  husband," 
and  then  pointing  out  the  numbers  of  concrete  cases 
which  the  law  indicates  as  being  the  consequence  of  this 
principle.  The  connections  thus  formed  are  artificial,  but 
they  are  fictitiously  true  and  can  serve  as  a  basis  for  a  per- 
fectly rational  construction. 

The  theorist  receives  from  the  legislator  certain  legal 
rules  and  concrete  decisions  of  varied  origin.  From  all 
these  he  has  to  compose  a  harmonious  whole.  The  juris- 
consult often  succeeds  so  well  that  he  is  sometimes  de- 
ceived and  believes  that  he  has  discovered  a  real  har- 
mony where  there  is  only  an  artificial  harmony.  It  seems 
to  him  that  the  concrete  solutions  which  have  been 
brought  together  by  chance  and  ingeniously  arranged  by 
him,  have  their  "raison  d'etre"  in  this  same  arrangement 
and  that  he  has  only  discovered  a  preestablished  harmony 
between  these  diverse  elements.  Take  any  myth  what- 

>[This  word  "construction"  may  also  be  rendered  "generality."  For  a  full 
explanation  of  its  meaning,  see  the  footnote  to  §  4  of  Chapter  XI.  —  ED.] 


§4]  LEGAL  FICTIONS  297 

ever,  —  "divine  right,"  "social  contract,"  "will  of  the 
people,"  "social  solidarity,"-—  and  any  constitution  what- 
ever, and  it  is  easy  to  establish  rational  relations  which 
are  sometimes  extremely  ingenious.  These  constructions 
are  very  legitimate  and  useful;  but  we  must  not  deceive 
ourselves  as  to  their  true  nature. 

Every  system  admits  of  principles  and  modifications  of 
these  principles.  Let  us  take,  for  instance,  blue  principles 
—  conservatism,  aristocratism,  and  collectivism  —  and 
red  principles  —  liberalism,  democratism,  and  individual- 
ism; —  it  is  equally  easy  to  give  to  any  legislation  what- 
ever the  blue  or  the  red  label.  In  the  first  combination, 
authoritarian  provisions  would  be  classed  under  the  rule 
and  liberal  provisions  as  exceptions;  in  the  second  com- 
bination, the  reverse  would  be  the  case. 

Bentham,  in  his  dialogue  "Truth  against  Ashhurst," 
seeks  to  put  Toryism  in  opposition  to  the  liberal  principle 
which  is  thought  to  dominate  all  legislation.  "The  law  of 
this  country  admits  of  no  restrictions  upon  the  actions  of 
individuals  other  than  those  which  are  necessary  for  the 
safety  and  good  order  of  the  community  in  general";  thus 
Judge  Ashhurst.  To  which  the  laborer,  Truth,  opposes  all 
the  vexations  of  the  law  which  without  benefit  to  anyone 
prevent  him  from  working  where  and  how  he  wishes.  He 
affirms  that  the  English  legislation  of  his  time  can  count 
more  than  a  thousand  restrictions  upon  liberty  which  are 
useless  and  even  harmful.  No  doubt,  he  was  right  in 
fact,  but  wrong  in  logic.  Since  the  good  old  judge  had 
entire  confidence  in  the  wisdom  of  the  legislator  and  took 
into  account  the  latter's  claims  to  liberalism,  he  was 
obliged  to  admit  by  construction  that  all  legal  prohibitions 
were  necessary  to  the  good  order  of  society. 

If  we  see  fit  to  lay  down  the  contrary  postulate,  "The 
law  of  this  country  does  not  accord  any  initiative  to  the 
actions  of  individuals  other  than  that  which  is  necessary 
to  the  safety  and  good  order  of  the  community,"  we 


298         DISEASES  OF  LEGAL  THINKING  [Cn.IX 

should  reverse  the  construction.  The  prohibitive  measures 
would  have  no  need  of  justification,  and  the  liberal  ones 
would  be  justified  by  the  public  interest.  The  two  con- 
structions are  fictions,  and  rational  so  long  as  they  are 
fictitious.  They  are  mythical,  on  the  contrary,  if  we  fancy 
that  concrete  dispositions  of  the  law  spring  really  and  log- 
ically from  the  general  ideas  with  which  we  connect  them. 

From  the  point  of  view  of  formal  logic,  the  blue  combi- 
nation with  the  red  exceptions,  or  the  red  combination 
with  the  blue  exceptions,  are  identical  when  they  have 
the  same  content.  The  actions  permitted  or  prohibited 
are  exactly  the  same.  In  juridical  logic,  it  is  not  a  mat- 
ter of  indifference,  but,  on  the  contrary,  one  of  great  im- 
portance, to  know  what  constitutes  common  law.  Com- 
mon law  is  virtually  more  powerful.  It  comprises  within 
it  all  unforeseen  instances,  and  is  found  to  be  superior  to 
the  exception,  even  when  it  appears  to  be  equal  to  it. 
Juridical  construction  chooses  those  elements  which  are 
endowed  with  attractive  power;  but  in  assuming  to  itself 
the  authority  of  formal  logic,  it  claims  to  be  what  it  is 
not  and  thus  is  of  the  nature  of  mythical  thought. 

II:  Mythical  Terms  and  Expressions  in  Law.  There  are 
in  law  many  instances  of  mythical  thought  which  have 
passed  unnoticed.  Often  the  legislator  and  those  who  in- 
terpret the  laws  use  expressions  whose  prestige  no  one 
disputes,  words  which  are  conclusive  to  all  and  which  it 
would  seem  sacrilegious  to  try  to  examine  too  closely. 
These  are  magical  words  to  which  we  owe  the  civilization 
which  surrounds  us  and  the  protection  the  law  affords  us. 
That  is  true.  The  words  are  magical  because  they  are 
mythical;  they  are  suggestive  and  indefinable.  It  would 
be  foolish  to  try  to  disturb  their  authority  or  even  to  de- 
mand a  more  precise  and  colorless  terminology.  But  in 
the  task  which  we  have  undertaken  of  connecting  the  ju- 
ridical past  with  philosophical  thought,  we  cannot  neglect 
to  give  an  example. 


§4J  LEGAL  FICTIONS  299 

Take  the  expression  'public  order"  in  the  French 
Civil  Law.  (We  could,  be  it  understood,  find  identical 
examples  in  all  modern  legal  systems.)  Certainly, 
everything  which  is  related  to  "public  order"  is  re- 
spectable; to  suppress  public  order  would  be  to  suppress 
the  law.  We  may  range  under  this  expression  what  is 
most  elevated  in  our  civilization  —  and  some  other 
things  too.  For  these  words  "public  order"  are  not  in 
our  law  susceptible  of  any  logical  definition.  The  legal 
writers  who  have  tried  to  give  even  a  very  vague  analy- 
sis of  them  have  only  considered  certain  concrete  cases 
and  not  all  the  concrete  cases  to  which  they  are  applica- 
ble. It  has  been  recognized  that  it  is  impossible  to  find 
a  criterion  by  which  to  classify  the  laws  of  public  order  and 
that  it  is  equally  impossible  to  enumerate  them .  What  then  ? 
Well,  the  legislator  should  have  taken  the  trouble  to  have 
pointed  out  in  each  instance  what  public  order  is,  and 
what  it  is  not.  Now,  he  did  not  do  this,  and  we  cannot 
make  good  his  silence,  since  we  have  no  sign  from  him 
and  can  find  none.  Moreover,  when  public  order  is  vio- 
lated, the  law  or  the  State  reacts  in  absolutely  opposite 
directions  on  different  occasions.  Sometimes  the  State 
and  its  representatives  in  the  judiciary  branch  feel  that 
they  are  directly  offended ;  they  will  then  take  the  initia- 
tive in  repressing  those  who  are  to  blame  and  will  pre- 
vent the  incriminated  act  from  producing  its  harmful  ef- 
fects. In  other  instances,  the  State  and  its  agents  confine 
themselves  to  turning  their  backs  upon  the  displeasing 
act,  but  do  not  interfere.  If  the  parties  are  in  agreement, 
they  may  continue  their  traffic  indefinitely,  in  spite  of  the 
fact  that  the  law  does  not  look  upon  it  with  favor.  Jus- 
tice will  not  always  annul  the  consequences  of  covenants 
contrary  to  public  order  even  when  they  are  realized. 
One  may  gamble,  pay  his  gambling  debts,  play  again 
upon  the  next  day,  be  ruined  by  the  game  and  be  thor- 
oughly ruined.  If  justice  does  not  compel  the  loser  to 


300       DISEASES  OF  LEGAL  THINKING     [CH.  EX 

pay,  no  more  does  it  compel  the  winner  to  make  restitu- 
tion. The  violation  of  public  order  sometimes  arouses  the 
intervention  of  authority;  in  other  instances,  it  is  simply 
sanctioned  by  the  complete  abstinence,  on  the  part  of  all 
authority,  from  any  interference. 

An  act  contrary  to  public  order  can  be  classified  neither 
by  means  of  its  definition  nor  its  sanction ;  accordingly  it 
escapes  all  formal  logic  and  would  be  a  mythical  concep- 
tion for  the  person  who  did  not  account  for  it.  In  trying 
to  explain  the  juridically  irrational  by  juridical  principles, 
the  old  systems  of  legal  philosophy  did  not  recognize  its 
philosophical  nature.  The  more  modern  systems  which 
make  an  appeal  to  sentiment  when  logic  is  lacking  are  no 
better  grounded. 

Irrational  intellectuality  is  one  of  the  most  fruitful 
sources  of  the  law.  In  my  opinion,  it  is  certain  that  the 
legal  philosophy  of  the  future  will  find  there  its  most 
substantial  bases. 

BIBLIOGRAPHY 

MAX  MULLER,  Das  Denken  im  Lichte  der  Sprache  (1888),  Nou- 
velles  eludes  de  Mythologie  (trans.  Job,  1898);  PAUL  REYNAUD, 
Comment  naissent  les  mythes  (1898),  pp.  245-7;  Le  Rig  Veda  et 
les  origines  de  la  mythologie  indo  europ^enne. 

MARTY,  Ueber  subjektlose  Satze  und  das  Verhaltniss  der  Gram- 
matik  zur  Logik  u.  Psychologic,  Vierteljahrschr.  fur  Wissenschaftl. 
Philosophic,  vol.  VIII  (1884). 

LANG,  Myth,  Ritual  and  Religion  (French  trans,  by  Marillier); 
OLDENBURG,  Religion  de  Veda;  BRUNNHOFER,  Homerische  Ratsel, 
Arische  Urzeit  (1910). 

RIBOT,  La  logique  des  sentiments;  JEAN  JAURES,  De  la  realite 
du  monde  sensible  (1902),  p.  182. 

MAURICE  MILLIOUD,  Essai  sur  i'histoire  naturelle  des  idees;  La 
formation  de  1'ideal,  in  Revue  philosophique  (1908);  La  propagation 
des  idecs,  in  Reiue  philosophique  (1910);  La  pensee  mystique  et  la 
pens6e  rationelle,  p.  17,  in  Bibliotheque  universelle  (1914). 

DUPREEL,  Theorie  des  id6es  confuses,  in  Revue  de  metaphysique  et 
de  morale,  pp.  517,  521  (1911);  LACOMBE,  Reflexions  sur  1'influence 
des  idecs,  in  Revue  de  synthsse  historique  (1913). 


§4]  LEGAL  FICTIONS  301 

PARETO,  Manuel  d 'Economic  politique;  Le  my  the  vertuiste; 
GEORGES  SOREL,  Introduction  a  1'economie  moderne  (1903);  Re- 
flexions sur  la  violence,  pp.  26,  30,  89,  124  (1908);  DUGUIT,  L'fitat, 
le  droit  objectif  et  la  loi  positive;  Les  transformations  du  droit 
public,  p.  15. 


CHAPTER  X 

THE  RATIONAL  ELEMENT  IN  LAW 
A.  ANALYSIS;  B.   DEFINITION 

§  1.     INTRODUCTION:  THE  SIMPLE  RATIONAL 

A.  Analysis 

§2.  ANALYSIS:  I:  LEGAL  PROCEDURE;  II:  CONCRETE  AND  AB- 
STRACT ANALYSIS;  III:  LOGICAL  VALUE  OF  LEGAL  ANALYSIS.— 
§3.  THE  BROCARD:  I:  DEFINITION  AND  FORM  OF  THE  BROCARD; 
II:  CLASSIFICATION  OF  BROCARDS;  III:  HISTORICAL  IMPORTANCE 
OF  THE  BROCARD;  IV:  ROLE  AND  LOGICAL  VALUE  OF  THE 
BROCARD. 

B.  Definition 

§4.  DEFINITION:  I:  DIFFERENT  KINDS;  II:  HISTORY;  III:  LOGI- 
CAL VALUE. 

A.  Analysis 

§  1.  The  Simple  Rational.  The  "diseases  of  thought," 
just  discussed,  are  aberrations  of  the  intelligence,  —  intel- 
lectual processes  which  are  unreasonable  or  irrational. 
But  there  are  other  intellectual  processes  which  are 
rational,  that  is  reasonable,  without  being,  properly 
speaking,  "logical"  or,  still  less,  scientific.  The  latter 
we  shall  term  "the  simple  rational." 

When  Galen  says  "Yes"  and  Hippocrates  "No,"  one 
of  them  must  be  mistaken,  for  they  affirm  or  deny  facts 
of  physical  nature  which  exist  or  do  not  exist.  To  ac- 
knowledge one  to  be  right  is  to  acknowledge  the  other  to 
be  wrong.  But  when  Proculus  says  "Yes"  and  Sabinus 
"No,"  or  when  any  two  jurists  whatever  contradict  each 
other,  they  may  both  be  right.  It  is  possible  that  the  ar- 
gumentation of  one  may  be  as  concise,  as  well  conducted 
and  as  thorough  as  that  of  the  other,  in  which  case  the  two 

302 


§  2  ]  ANALYSIS  303 

opinions  are  equally  reasonable.  For  there  is  no  object- 
ive fact  which  can  serve  to  appraise  their  opinions.  Thus 
it  is,  nearly  always  at  least,  in  practical  life.  One  may 
speak,  write,  or  act  very  sensibly  and  after  due  reflection 
in  very  different  ways.  Life  very  seldom  presents  logical 
problems;  yet  it  is  a  series  of  rational  problems. 

The  logical  problem  admits  of  but  one  solution.  If  it 
is  well  conducted,  it  necessarily  ends  in  a  relative  or  an 
absolute  truth,  but  in  only  one  truth.  The  rational  prob- 
lem nearly  always  admits  of  several  solutions.  Opera- 
tions of  rational  intellectuality  are  never  strictly  settled 
and  fluctuate  somewhat  by  chance.  Nevertheless  in 
many  instances  they  necessitate  intense  and  sustained 
cerebral  labor.  "The  simple  rational"  is  not  a  thought 
of  a  lower  order  than  the  purely  logical  thought.  It  may 
be  much  more  complex.  But  it  is  a  different  thing,  and 
the  two  must  not  be  confused. 

There  is  no  mental  discipline  which  furnishes  as  much 
exercise  for  the  reason  as  does  the  Law;  there  is  perhaps 
none  which  contains  as  rich  and  as  varied  processes  of  ar- 
gumentation. Law  has  perhaps  done  much  more  for  the 
development  of  the  human  brain  than  any  other  science. 
But  generally  Law  does  not  attain  logic  properly  so  called. 
Its  favorite  domain  is  the  reason,  the  simple  rational. 
I  do  not  say  that  it  cannot  go  beyond  this  stage  and 
attain  pure  and  even  scientific  logic.  But  if  it  does  this, 
it  is  only  in  exceptional  instances. 

In  this  chapter  we  are  going  to  study  some  of  the  ra- 
tional operations  which  have  done  their  part  in  the  de- 
velopment of  the  law. 

§  2.  A  nalysis.  If  one  compares  the  progress  of  a  law- 
suit, even  in  a  very  primitive  society,  with  an  ordinary 
discussion,  even  in  a  very  cultivated  society,  one  is 
struck  by  the  order  which  characterizes  the  legal  discus- 
sion and  the  incoherence  which  characterizes  every  other 
discussion.  The  polemics  of  the  press  and  parliamentary 


304  RATIONAL  ELEMENT   IN   LAW       [Ca.X 

discussions  ordinarily  take  place  between  highly  educated 
persons,  who  know  how  to  speak  and  write  and  who  are 
often  not  lacking  in  legal  training.  Is  it  an  exagger- 
ation to  say  that  they  confuse  the  questions  instead  of 
clarifying  them?  Leaving  no  stone  unturned,  the  oppo- 
nents, not  without  malice,  accumulate  the  most  varied 
charges,  bring  up  the  most  unexpected  arguments,  pile 
up  the  most  inaccurate  denials  and  affirmations,  thus 
deafening  those  whom  they  have  chosen  as  judges  and 
rendering  them  utterly  incapable  of  forming  a  reasonable 
opinion. 

I:  Analysis  and  Legal  Procedure.  Before  the  birth  of 
law,  family  and  tribal  quarrels  were  surely  no  better  con- 
ducted. One  may  easily  imagine  an  unfortunate  petty 
chief  assailed  by  the  clamors  of  two  adversaries,  each  sur- 
rounded by  his  followers,  and  hurling  accusations  and 
charges  against  the  other,  all  the  while  begging  or  even 
threatening  the  king,  in  order  to  gain  his  support.  In  the 
midst  of  such  chaos,  there  is  no  way  of  knowing  where 
you  are.  To  organize  this  chaos,  there  is  a  single  means: 
order,  that  is  to  say,  analysis. 

We  may  believe  that  the  law  sprang  into  being  at  the 
exact  moment  when  the  ruler  was  able  to  say  to  the 
parties,  "Do  not  all  speak  at  the  same  time"; 1  "Now  be 
quiet,  and  listen."  l, 2  "The  priests  command  silence."  3 
He  may  have  added,  "Both  of  you  give  up  the  disputed 
object."4  "Both  of  you  release  the  man."5  And 
then,  "Do  not  speak  of  everything  at  once."  "Make 
but  one  accusation  at  a  time."  "Answer  his  accusation 
directly  and  do  not  yourself  accuse."  "Answer  frankly 
by  Yes  or  No."  "Do  not  bring  into  the  case  old  suits 

'Or  faites  paix,  si  escoutez." 
'Wellet  ir  nu  gedagen, 
Swigen  und  hoeren  sagen." 
'Silentium  per  sacerdotes  imperatur." 
'Lachez  tous  deux  1'objet  dispute-," 
'Mittite  ambo  hominem." 


1 2]  ANALYSIS  305 

that  have  already  been  judged."  And  these  various  pre- 
scriptions illustrate  the  essentially  analytic  character  of 
ancient  laws. 

We  do  not  purport,  be  it  understood,  to  give  even  an 
approximate  description  of  what  actually  took  place.  It 
may  be  that  these  principles  of  organization  were  due  in 
but  small  measure  to  royal  initiative,  and  that  the  primi- 
tive groups  developed  some  elements  of  the  judiciary  or- 
ganization through  their  own  administration.  Especially 
may  it  have  been  the  case  that  the  religious  power  was 
the  first  organizer  of  lawsuits,  and  that  the  precision  of 
religious  or  magical  formulas  determined  the  precision  of 
juridical  analysis.  It  is  none  the  less  certain  that  the  di- 
rection of  lawsuits  passed  from  the  priest  to  the  king,  who 
scrupulously  followed  the  old  methods,  which  alone  were 
capable  of  resulting  in  a  true  organization  of  justice. 

The  role  of  analysis  in  the  development  of  the  law  has 
been  wonderfully  worked  out  by  Jhering,  in  his  "Geist  des 
romischen  Rechts."  This  part  of  his  work  is  as  ingenious 
as  substantial,  and  every  history  of  juridical  logic  ought 
to  draw  inspiration  from  it.  The  famous  expression,  "the 
alphabet  of  the  law,"  is  a  godsend;  nor  is  it  the  only  one. 

He  makes  a  very  happy  distinction  between  concrete 
and  abstract  analysis.  Concrete  analysis  is  almost  of  a 
dramatic  character,  at  least  at  the  beginning.  The  pro- 
cedure of  the  trial  is  already  analysis.  It  is,  in  any  case, 
the  indispensable  condition  of  every  analysis.  Procedure 
is  nothing  other  than  the  art  of  adapting  a  claim  to  the 
policy  of  a  given  tribunal.  The  great  principles  of  court 
organization  and  procedure  are  analytic  principles. 

This  is  true  as  regards  jurisdiction.  The  complaint 
must  be  brought  before  one  judge,  and  that  a  given  judge. 
"Do  not  strike  with  two  rods,  nor  dispute  with  two 
judges,"  says  an  Abyssinian  proverb.1  And  it  adds. 
"Even  if  you  know  everything,  do  not  dispute  with  the 

1  Failovitch.  ed.  Geuthier. 


306          RATIONAL  ELEMENT  IN  LAW      [CH.X 

judge."  Thus  the  rdles,  confused  in  the  beginning,  have 
become  clearly  defined.  The  judge  decides  the  question 
and  the  parties  must  submit  to  his  decision. 

The  principle  of  "res  judicata,"  excluding  from  the 
present  complaint  every  claim  or  grievance  already  ex- 
amined, is  an  important  gain  of  juridical  analysis  over 
human  nature,  which  forgets  nothing  nor  ever  pardons. 
In  practical  life  everyone  cherishes  carefully  in  the  bottom 
of  his  heart  every  reproach  which  he  may  address  to  his 
opponents  and  even  to  his  friends  in  case  of  a  quarrel 
or  a  discussion.  Primitive  procedures,  even  more  than 
those  of  modern  times,  freed  legal  quarrels  from  this 
mass  of  spite,  through  need  of  order  if  not  for  the  sake 
of  generosity.  And  how  superior  is  juridical  thought 
to  ordinary  thought,  which  the  purest  and  most  poetic 
systems  of  morality  scarcely  succeed  in  influencing ! 

Primitive  judiciary  discipline  imposes  upon  the  plaintiff 
extreme  precision  in  the  announcement  of  his  claims.  He 
is  to  bring  forward  but  a  single  grievance,  to  base  his 
claim  upon  a  single  principle  of  the  law,  to  claim  but  one 
object,  and  to  express  himself  in  such  a  way  that  first  the 
defendant,  then  the  judge,  can  determine  by  a  simple 
"Yes,"  or  "No,"  whether  or  not  the  claim  is  justified. 
It  is  required  of  the  defendant  that  he  answer  by  a 
simple  negative,  that  he  raise  no  new  questions,  that  he 
set  not  himself  up  as  plaintiff  on  another  score,  nor  seek  to 
escape  the  charges  which  are  directed  against  him  by  re- 
criminating his  opponent  in  his  turn.  Counterclaim,  set- 
off,  and  sometimes  even  plea,  are  denied  him.  It  is  true 
that  he  may  not  always  be  prohibited  from  pleading  cer- 
tain facts,  suppressed  by  his  opponent,  which  are  of  a 
nature  to  free  him.  From  this  arises  a  mechanism  of  pro- 
cedure that  is  rather  subtle  and  variable,  according  to  the 
legal  system,  which  seeks  to  supply  the  defects  of  the 
primitive,  rudimentary  and  practical  analysis  by  more 
refined  analysis. 


§  2  ]  ANALYSIS  307 

Concrete  analysis  governs  the  drawing  up  of  instru- 
ments. This  extra- judiciary  procedure,  designed  to  fix 
the  law  and  in  case  of  a  suit  to  base  it  on  justice, 
ought  to  harmonize  more  or  less  with  the  judiciary 
procedure. 

When  it  enters  upon  the  study  of  abstract  analysis, 
Jhering's  exposition  no  longer  presents  the  same  lucidity. 
It  even  seems  to  us  that  at  times  he  wanders  entirely 
from  his  subject.  Certain  ingenious  views  which  he  pre- 
sents to  us,  notably  those  upon  the  exercise  of  power  by 
functionaries  irregularly  appointed,  seem  to  have  no  con- 
nection with  the  question. 

II:  Concrete  Analysis  and  Abstract  Analysis.  We  may 
say  then  that,  according  to  Jhering,  the  analysis  made  in 
procedure  and  in  the  drawing  up  of  legal  instruments  is  a 
concrete  analysis;  but  still  it  behooves  us  to  state  precisely 
in  what  sense  this  is  true.  It  is  a  concrete  analysis 
through  the  discipline  imposed  upon  the  parties  to  formu- 
late their  complaints  or  create  legal  relations  between 
them.  This  spirit  of  analysis  is  manifested  in  the  multi- 
plicity and  order  of  the  ceremonies,  the  gestures  and  the 
words  assigned  to  each  party,  and  the  number  or  the 
form  of  the  documents,  all  of  which  are  concrete  and 
dramatic  acts.  But  the  picturesque  proceedings  of  the 
old  civilizations  are  capable  of  interpreting  very  subtle  dis- 
tinctions of  the  abstract  juridical  mind.  In  distinguish- 
ing the  contract  of  sale  from  the  transfer  of  property 
which  is  its  rational  consequence,  there  is  imposed  upon 
the  parties  two  distinct  ceremonies  which  will  take  place 
under  two  different  forms  and  before  two  different  pub- 
lics. But  these  two  concrete  acts  express  the  distinction 
between  real  and  personal  rights,  a  distinction  which  is 
extremely  subtle  and  which  constitutes  one  of  the  most 
important  principles  of  juridical  abstraction. 

Accordingly,  if  one  wishes  to  be  absolutely  precise,  the 
following  distinctions  must  be  made : 


308          RATIONAL  ELEMENT  IN  LAW      [CH.X 

(a)  Purely  concrete  juridical  analysis.    This  imposes  a 
dramatic  division,  but  not  a  division  of  the  corresponding 
juridical  concepts.     For  instance,  the  requirement  that 
the  parties  speak  in  turn,  and  a  separate  complaint  be 
entered  for  every  object  claimed. 

(b)  Purely  abstract  analysis,  a  purely  intellectual  di- 
vision of  juridical  concepts  without  concrete  translation 
in  the  procedure  or  the  form  of  the  actions.    Such  is  the 
work  of  the  judge,  in  systems  where  disputes  are  pre- 
sented to  him  in  a  complex  form  and  where  they  must  be 
separated  into  their  elements. 

(c)  Juridical  analysis  with  both  concrete  and  abstract 
aspects,  of  which  we  have  already  given  examples. 

Now  in  this  last  type  sometimes  dramatic  separation 
has  preceded  and  caused  the  abstract  distinction,  and 
sometimes  the  reverse  is  the  case.  The  juridical  analysis 
performed  by  the  authorities  and  their  representatives 
often  presents  a  more  concrete  character;  the  juridical 
abstraction  performed  by  the  individual  or  his  represen- 
tatives, a  more  abstract  character;  that  is  to  say,  that 
one  side  starts  from  the  concrete  in  order  to  attain  the 
abstract;  the  other,  from  the  abstract  in  order  to  attain 
the  concrete.  When  the  sovereign  power  concerns  itself 
with  organization,  it  takes  care  to  dictate  to  the  parties 
the  conduct  which  they  must  observe,  and  its  orders  are 
formulated  under  a  precise  and  concrete  form.  But  since 
the  sovereign  power  cannot  be  argued  with,  and  since  one 
cannot  escape  the  penalty  of  the  law,  it  is  the  individual 
who  is  anxious  to  set  himself  right  with  it.  He  needs  ab- 
stract analysis  in  order  to  be  able  to  examine  the  situa- 
tion and  understand  what  is  the  order  of  the  king  decreed 
for  such  a  case.  Thus  the  banker  who  installs  his  iron 
gratings  with  inscriptions  upon  them  performs  an  opera- 
tion of  concrete  analysis,  and  the  patron  who  asks 
himself  to  what  grating  he  must  apply  for  any  speci- 
fied transaction,  performs  an  operation  of  abstract 


§  2  ]  ANALYSIS  309 

analysis.     The   two   taken   together   form   a   complete 
analysis. 

Of  course,  in  our  times  no  one  is  supposed  to  be 
ignorant  of  the  law  and  there  is  no  need  for  the  sovereign 
power  to  explain  its  wishes.  That  is  the  affair  of  the 
public.  The  modern  jurisconsult  works  for  the  public 
and  not  for  the  sovereign  power,  which  has  no  need  of 
his  assistance  to  make  itself  obeyed.  But  when  the 
sovereign  power  is  weak,  it  needs  the  jurisconsult  to 
advise  it  how  to  govern  its  subjects  and  accordingly  the 
jurisconsult  works  for  the  sovereign  power. 

Ill:  The  Logical  Value  of  Juridical  Analysis.  The  ser- 
vices which  juridical  analysis  has  rendered  humanity  are 
incalculable.  It  has  been  the  most  potent  factor  in  the 
development  of  thought.  No  civilization  could  have  arisen 
without  it.  How  may  we  recognize  the  twelfth,  thir- 
teenth and  fourteenth  centuries?  By  their  jurists  and  by 
their  architects.  The  work  of  architects  is  within  reach 
of  all ;  the  work  of  the  jurists  is  accessible  to  but  a  small 
number.  Nevertheless  both  are  broad  in  compass  and 
extremely  delicate  in  workmanship.  While  the  architect 
dominated  the  aesthetic  life,  the  jurist  was  the  sole  mas- 
ter of  the  intellectual  life.  In  the  sixteenth  century,  law 
gave  its  aid  to  theology  and  philosophy,  and  these  doc- 
trines are  best  known  to  us  and  the  most  alive.  As  for 
the  degree  of  intellectual  power  which  they  were  able  to 
develop,  I  am  not  certain  that  they  were  superior  to  ju- 
ridical education, — the  education  due  to  juridical  analysis. 

Juridical  analysis  possesses  this  incomparable  educa- 
tional value  because  it  is  an  extremely  delicate  operation, 
which  demands  a  general  activity  of  the  mind  and  makes 
an  appeal  to  the  creative  faculties  as  well  as  to  the  critical 
and  deductive  faculties  and  the  faculties  of  observation. 

Nevertheless  we  do  not  hesitate  to  place  juridical  an- 
alysis outside  of  the  pale  of  logic  properly  so  called;  for  in 
our  opinion  logic  must  be  a  necessary  operation  of  the 


310          RATIONAL  ELEMENT  IN   LAW       [  CH.  X 

intellect,  a  work  which  must  perforce  be  conducted  in  a 
certain  way  and  in  no  other.  Now,  one  and  the  same 
legal  relation  may  be  analyzed  by  several  methods.  There 
are  certain  more  familiar  methods  of  dissecting  juridical 
matter,  but  there  are  others  equally  legitimate;  which  may 
take  us  by  surprise  for  a  moment.  But  since  everyone 
wishes  to  have  a  hand  in  the  process  of  dissection,  we  are 
obliged  to  recognize  the  fact  that  the  spirit  of  analysis  in 
itself,  freed  from  every  prejudice,  can  approve  several  so- 
lutions of  the  same  problem. 

§  3.  The  Brocard.  Whoever,  through  prejudice, 
should  neglect  the  brocard  would  understand  but  little  of 
the  real  mechanism  of  juridical  thought.  Primitive  and 
advanced,  theoretical  and  practical,  systems  of  law  are 
partial  to  these  brief  formulas  which  carry  with  them 
stronger  conviction  than  do  long  treatises.  The  modern 
public  at  large  knows  nothing  of  the  law  except  a  few 
brocards,  which  are  often  little  understood.  The  peoples 
of  ancient  times  often  held  in  memory  a  rich  store  of  these. 
Mixed  up  with  proverbs  upon  good  and  bad  weather,  the 
conduct  of  life,  morality,  etc.,  they  formed  the  basis  of 
their  intellectual  wealth.  This  wisdom  of  the  ancients 
has  given  us  a  large  part  of  statutory  law;  and,  however 
scientific  our  modern  interpreters  of  laws  claim  to  be,  it 
seems  to  me  that  juridical  practice  cannot  dispense  with 
it  for  a  long  time. 

I :  Definition  and  Form  of  the  Brocard.  But  what  are 
brocards?  They  may  also  be  termed  proverbs,  sen- 
tences, adages,  maxims,  aphorisms,  juridical  rules,  pre- 
cepts, and  notabilia.  All  of  these  expressions  are  not 
synonymous;  but  they  are  so  based  one  upon  the  other 
that  no  precise  distinction  which  might  be  used  for  the 
purpose  of  classification  can  be  made.  The  brocard  is  a 
principle  which  claims  to  be  indisputable.  It  is  presented 
as  a  juridical  axiom,  although  it  is  rarely  of  this  character. 
Its  logical  value  is  very  variable,  often  negligible;  which 


§3]  THE   LEGAL  BROCARD  311 

fact,  however,  does  not  prevent  it  from  exercising  decisive 
authority  in  its  own  sphere.  This  authority  the  brocard 
very  often  owes  in  large  part  to  its  form,  that  is,  to  its 
conciseness  or  alliteration. 

The  imperative  is  always  concise;  for  this  reason,  the 
concise  has  the  manner  of  an  imperative.  A  sharp,  crisp 
assertion  dissipates  every  idea  of  discussion  and  even  of 
reflection.  But  such,  however,  is  not  the  form  most  used. 
The  juridical  proverb  wishes  to  be  convincing  rather  than 
imposing.  It  insinuates  itself  into  the  mind  through 
qualities  of  symmetry  and  harmony,  which  human  psy- 
chology easily  confuses  with  reason.  The  brocard  is 
composed  of  two  phrases  which  mutually  bolster  up  and 
sustain  each  other  by  the  repetition  of  the  same  syllables 
and  the  same  words,  or  by  an  accordance  of  their  termina- 
tions. Everybody  knows  that  a  good  proverb  must  rhyme 
to  be  apt.  This  is  also  true  of  a  good  juridical  proverb. 
But  it  will  have  even  more  force  through  alliteration  or 
the  repetition  of  words.  If  it  possesses  at  the  same  time 
rhyme,  alliteration,  and  repetition,  nothing  more  is  to  be 
desired. 

It  must  not  be  imagined  that  these  special  forms  have 
as  their  principal  or  sole  "raison  d'etre"  to  engrave  them- 
selves upon  the  memory.  Their  principal  "raison  d'etre" 
is  to  convince.  Their  power  of  conviction  has  lost  nothing 
in  our  modern  psychology.  If  one  examines 'minutely  the 
speeches  or  writings  of  the  grandiloquent  orator  or  journal- 
ist, alliteration  and  repetition  of  words  will  be  frequently 
encountered.  As  an  example:  "General  ideas  are  gen- 
erous ideas";  here  is  a  thought  which  is  not  very  old  and 
which  even  aside  from  its  alliterative  form  is  worthy  of 
admiration.  If  one  had  confined  oneself  to  saying, 
"General  ideas  are  good  or  beneficent,"  would  anyone 
have  taken  the  trouble  to  preserve  that  phrase?  There  is  a 
saying  as  banal  as  it  is  modern,  which  expresses,  moreover, 
the  philosophy  of  alliteration:  "Saint  and  simpleton 


312          RATIONAL  ELEMENT  IN  LAW       [CH.X 

begin  with  the  same  letter";1  here  there  is  an  implica- 
tion that  things  which  begin  with  the  same  letter  stand 
a  chance  of  resembling  one  another. 

It  is  perhaps  not  necessary  to  give  examples,  as  the 
store  of  juridical  sayings  is  very  rich  and  within  the  reach 
of  all.  Nevertheless,  let  us  cite  some  typical  forms  bor- 
rowed here  and  there. 

Alliterative  proverbs: 

"The  greater  the  right, 

The  greater  the  wrong."2 
"  No  free  man  without  a  freeholding." 3 
"Leave  land  and  leet 

To  save  thy  life."4 
"What's  food  for  fire's  maw 

Is  a  chattel  in  law."  5 
"Manner  masters  matter."  6 

In  the  following  sayings, 

"Settling  the  title  of  the  donor 

Settles  the  title  of  the  donee."  7 
"Power  to  do  the  greater 

Is  power  to  do  the  less."  8 
"Inclusion  of  the  one  is 

Exclusion  of  the  other."  9 
"The  vote  of  one  is 

The  vete  of  none,"  10 

the  repetition,  the  parallelism  of  the  terms  joined  with  the 
rhyme,  and  the  assonance,  contribute  to  the  popularity  of 
the  proverbs. 

'Bon  et  bete  commencent  par  la  me1  me  lettre." 
2  'Summum  jus,  summa  injuria." 

*  'Nemo  liberalis,  nisi  liberatus."  *  " Qui  potest  et  majus, 

4  'Land  ende  Hod  rema  ende  sin  Uf  helpa."  Potest  et  minus." 

5  'Was  derfackel  verzehrt,  ist  f amis."  *  "Inclusiounius, 

•  'La  forme  emporte  le  fond."  Exclusio  alterius." 
7  'Resolute  jure  dantis,  '""Voixd'un, 

Resolvitur  jus  accipientis."  Voix  de  nun." 


§3]  THE  LEGAL  BROCARD  313 

Brocards  in  simple  rhyme  are  legion,  even  in  many 
languages  which  do  not  ordinarily  use  rhyme  in  poetry. 
Sometimes  the  rhythm  of  the  phrase,  conformity  to 
certain  rules  of  prosody,  or  even  its  singing  measure  al- 
though in  a  prose  form,  informs  us  that  a  brocard  is  before 
us. 

We  must  not  overlook  the  picturesque  saying  which, 
regardless  of  form,  obtrudes  itself  upon  the  attention  by 
reason  of  an  especially  apt  or  amusing  comparison : 

"Oxen  are  bound  by  their  horns,  and  men  by  their 

words."1 

"The  foot  gives  seisin  to  the  head."  2 
"When  the  thicket  touches  the  knight's  spurs, 
The  serf  loses'his  right."3 

In  popular  laws,  brocards  nearly  always  appear  under 
one  of  these  forms,  which  renders  them  familiar  to  all  and 
confers  upon  them  as  much  authority  as  popularity. 
More  learned  laws  are  more  prosaic.  To  a  public  which 
wishes  to  appear  serious  and  is  even  not  afraid  of  being 
bored,  the  old  forms  do  not  appear  to  have  the  necessary 
gravity.  The  brocard  then  is  a  phrase  which  is  not  dis- 
tinguished from  any  other  phrase  except  that  it  is  re- 
peated more  often  and  is  sometimes  quite  concise: 

"No  defeasance  without  express  words."4 
"The  place  gives  the  law  for  the  act."  5 

If  it  loses  its  clearly  defined  form,  or  becomes  compli- 
cated with  incidents  or  indirect  propositions,  the  brocard 
is  no  longer  a  brocard.  Interpreted  by  a  heavy  pen,  the 

1  "On  lie  les  bceufs  par  les  comes 

et  les  hommes  par  les  paroles." 
*"Lc  pied  saisit  le  chef." 
*"Wenn  dcr  Busch  geht  Reiter  an  die  Sporen, 

So  hat  der  Unterthan  sein  Recht  verlorerj." 
4 "Pas  de  nullit6  sans  texte." 
*  "Locus  regit  acturn-" 


314  RATIONAL  ELEMENT  IN  LAW      [Cn.X 

whole  thought  collapses  into  juridical  prose,  where  the 
mind  can  no  longer  discover  it  except  by  wearisome  ex- 
ertion. Thus  in  the  old  popular  law  usages,  the  form  of 
partitioning  of  property  was  expressed  in  these  sayings : 

"The  elder  divides,  the  younger  chooses,"  1 
but  in  a  dogmatic  form: 

"It  is  to  be  known  that  if  there  are  two  brothers, 
and,  according  to  law,  the  younger  divides,  the  elder 
always  has  the  right  to  choose,  for  thus  no  unfairness 
can  be  charged."  2 

Aside  from  the  disagreement  as  to  the  r61e  of  the  two 
brothers,  the  two  forms,  although  they  have  almost  the 
same  meaning,  are  very  different  in  the  power  and  ex- 
tent of  their  action. 

II :  Classification  of  Brocards.  From  the  point  of  view 
of  subject  matter,  the  proposition  which  constitutes  a 
brocard  always  purports  to  express  a  self-evident  or  an 
almost  self-evident  truth.  But  this  self-evidence  is  not 
always  of  the  same  nature.  If  the  brocards  are  axioms, 
they  are  such  through  a  variety  of  claims.  They  may  be 
logical  axioms,  axioms  drawn  from  moral  or  social  life, 
axioms  of  juridical  construction,  axioms  of  obedience  to 
custom,  law  or  to  the  sovereign  power,  axioms  based  upon 
experience,  and  axioms  based  upon  common  sense.  This 
classification  does  not  claim  to  be  complete,  but  to  show 
how  juridical  conviction  rests  upon  a  number  of  bases. 
For  if  the  brocard  is  not  actually  and  absolutely  an  axiom, 
there  is  nothing  in  the  law  which  approaches  nearer  to 
the  axiom  and  which  can  better  serve  to  establish  in  ju- 
ridical discipline  the  idea  of  a  self-evident  proposition. 

1  "L'ain6  lotit,  le  puine  choisit."  "  Der  Aeltere  theilet,  der  Jungere  kieset." 
*"Sciendum  est,  si  duo  fratres  fuerint,  factis  a  minori  portionibus  secundum 

jus,  major  semper  tenetur  eligere,  cum  in  hoc  nulla  malitia  valeat  inveniri."    Summa 

4e  legihus  Normanniae,  XXIV,  12. 


§3]  THE  LEGAL  BROCARD  315 

(1)  Brocards  Based  upon  Logic.     Certain  juridical  bro- 
cards  are  connected  with  general  logic.     They  are  true 
in  the  law  because  they  would  be  equally  true  in  every 
domain  and  particularly  in  that  of  dialectics.     For  ex- 
ample, these  two  from  Gaius: 

"The  whole  contains  also  the  part."  l 

"  The  special  is  always  included  in  the  general."  2 

Again,  let  us  cite  this  well-known  adage  which  is  a  trans- 
lation from  a  Roman  precept : 

"Who  can  do  more,  can  do  less,"  3 
and  that  rule  of  mediaeval  juridical  dialectics : 

"Under  universality  come  those  things  which  are  not 
embraced  under  generality."  4 

There  are  others  which  are  corollaries  of  axioms  not 
expressed  and  whose  import  passes  beyond  the  juridical 
domain  properly  so-called.  From  the  psychological  na- 
ture of  the  will,  Roman  jurisconsults  have  thus  deduced 
these  two  rules: 

"He  who  can  will,  can  refuse."  5 
"He  is  not  considered  to  will  who  obeys  the  com- 
mand of  a  father  or  a  master." 6 

(2)  Brocards  Based  on  Moral  or  Social  Considerations. 
In  every  age,  a  great  number  of  precepts  are  inspired  by 
mora  considerations.    Some  are  direct  productions,  others 
are  extracts  from  older  texts.    They  are  always  presented 
as  self-evident  principles  of  morality.     Thus  one  might 

'In  toto  et  pars  continetur." 
'Semper  specialia  generalibus  insunt." 
'Qui  peut  le  plus,  pcut  !c  moins." 

'Sub  univcrsitate  veniunt  quje  non  comprehenduntur  sub  generalitate." 
'Ejus  est  nolle,  qui  potest  velle." 
'Velle  non  creditur, 
qui  imperio  patris  vcl  domini  obsequitur." 


316          RATIONAL  ELEMENT  IN  LAW       [CH.X 

gather  a  great  number  based  upon  the  protection  of  the 
weak,  of  women,  of  widows  and  of  orphans : 

"Widows  and  children  are  the  wards  of  the  church."  1 
"The  ruler  who  ought  to  rule  his  whole  people,  ought 
to  rule  and  protect  the  orphan  even  more  faithfully."  2 
"The  law  excuses  woman  in  her  ignorance."  3 

More  practical  but  of  a  similar  nature,  this  precept : 
"  It  is  well  not  to  disturb  land  about  to  be  ploughed."  4 

Of  a  canonical  flavor,  although  based  upon  Roman  texts : 

"Poverty  pays  with  an  excuse."  5 

"You  can  well  yield  to  the  will  of  a  parent."  6 

"Do  not  add  further  affliction  to  the  afflicted."7 

A  principle  of  general  equity  and  hence  of  morality,  this 
regulation  from  Gaius: 

"Good  faith  does  not  allow  the  same  thing  to  be 
exacted  twice."  8 

(3)  Brocards  Base  upon  Juridical  Principle.  These 
brocards  are  not  based  upon  dialectic  inference  nor  moral 
inference,  but  upon  juridical  inference.  They  rest  upon 
this  idea,  that  every  legal  concept  presents,  side  by  side 
with  its  arbitrary  and  accidental  characteristics,  others 
which  are  permanent  and  belong  to  it  naturally.  Thus 
we  distinguish  in  every  juridical  concept  its  essence,  its 

1  '  Viduae  et  pupilli  sunt  in  protectione  ecclesiae." 

8  '  Dux  qui  totum  suum  debet  regere  populum, 
orphanum  fidelius  debet  regere  et  servare." 

8  '  Das  Recht  entschuldigt  das  Weib  in  der  Unwissenheit." 

4  'Utile  est  araturam  non  disturbare." 

6  'Paupertas  tribuit  excusationem." 

6  'Recedi  posse  a  voluntate  parentis." 

7  '  Afflicto  non  addenda  est  ulterior  afflictio," 

8  'Bona  fides  non  patitur 

Vt  bis  idem  exigatur," 


§3]  THE  LEGAL  BROCARD  317 

nature,  and  its  accidental  qualities  These  distinctions 
are,  be  it  understood,  purely  subjective,  and  what  appears 
natural  to  one  may  not  seem  so  to  another. 

For  Ulpian  there  was  "nothing  more  natural  than  to 
use  the  same  form  in  the  creation  and  the  extinction  of 
obligations."  * 

Yet  institutions  of  the  "jus  civile"  generally  ap- 
peared less  natural  and  furnished  fewer  brocards  to  the 
Roman  jurists  than  did  the  institutions  of  the  "jus  gen- 
tium." Thus  Paulus  writes:  "That  is  owed  by  nature, 
which  ought  to  be  granted  by  the  law  of  nations."2 
From  which  springs,  "By  nature  is  due  that  which  by 
nature  it  is  just  should  be  paid,"  3  a  formula  vague 
enough  to  lend  itself  to  numberless  applications. 

It  is  a  juridical  inference  which  the  French  Court  of 
Cassation  invokes  in  a  decree  of  February  19,  1819: 

"Whereas  it  is  a  maxim  of  all  times  and  all  places  that 
the  moment  of  death  determines  the  status  of  creditors 
and  of  the  goods  of  the  deceased,  and  that  accordingly 
it  is  not  in  the  power  of  the  ordinary  creditors  of  an 
estate  to  be  changed  into  mortgage  creditors.  .  .  .  " 

Brocards  of  this  nature  are  numerous.  Among  them, 
may  be  cited  principles  which,  although  enunciated  for 
particular  cases,  were  found  to  possess  a  rational  force 
great  enough  to  pass  far  beyond  the  original  field  of  ap- 
plication and  become  general  principles. 

Thus  the  Rhodian  law  of  jettison  distributes  among  all 
the  merchants  who  had  cargoes  of  merchandise  upon  a 
ship,  the  loss  of  that  part  which  had  to  be  thrown  into 
the  water  to  save  the  rest.  The  principle,  "That  is  to  be 
made  good  by  the  contributions  of  al  which  was  expended 
for  the  benefit  of  all,"  4  has  passed  beyond  the  bounds  of 

'"Nihil  tarn  naturale  est  quam  eo  genere  quidque  dissolvere  quam  colligatum 
est." 

1  "Is  natura  debet,  quern  jure  gentium  dare  oportet." 
'  "  N'atura  debetur  id  quod  natura  sequum  est  solvi." 
4  "Omnium  contributione  sarcietur  quod  pro  omnibus  expensum  est." 


318  RATIONAL  ELEMENT  IN  LAW      [CH.X 

maritime  law  and  become  a  juridical  axiom  of  general 
application.1 

(4)  Brocards  Based  on  the  Interpretation  of  Laws  and 
Juridical  Acts.     Brocards  on  the  interpretation  of  laws 
and  legal  transactions  derive  their  authority  from  dia- 
lectic and  juridical  inference.    These  are  very  numerous. 
We  may  cite  one  from  old  Quintus  Mucius  Scaevola : 

"Provisions  in  a  testament  written  so  that  they 
cannot  be  understood  are  the  same  as  if  not  written," 2 

which  may  seem  at  first  sight  simply  a  common-sense 
truth.  In  reality,  the  ancient  jurist  waives  aside  with  a 
somewhat  Roman  brutality  the  pious  scruples  of  certain 
judges  who  believed  that  they  were  constrained  to  dis- 
cover the  thought  of  the  deceased  in  a  maze  of  the  most 
enigmatical  terms. 

Brocards  of  interpretation  are  very  numerous  in  every 
digest.    In  our  old  laws,  there  are  some  that  are  popular: 

"The  best  one  to  explain  a  writer's  words  is  the 
writer  himself";3 

and  others  learned,  with  a  scholastic  flavor: 

"An  indefinite  expression  presumptively  includes  the 
future."4 

"  Many  things  are  accepted  by  way  of  deduction 
which  otherwise  would  not  be  conceded."  5 

(5)  Brocards  Based  upon  Custom.    There  are  brocards 
which  have  a  positive  rather  than  a  rational  character. 
True  in  one  country,  they  may  be  false  in  another.    Cer- 
tain customs  produced  the  adage,  "  No  lord  without  land," 

iLeyser,  III,  p.  143. 

!"Quae  in  testamento  ita  sunt  scripta  ut  intelligi'non  possunt  perinde  sunt  ac 
si  scripta  non  essent." 

*  "Ein  jeder  ist  seiner  Worte  bestcr  Ausleger." 
4"Locutio  indiffinitiva  regulariter  extenditur  ad  futura." 
6."Admittuntur  multa  per  consequentiam,  quae  alias  non  concederentur." 


§3]  THE  LEGAL  BROCARD  319 

to  which  others  reply,  "No  land  without  a  lord."  Certain 
legal  systems  affirm  quite  as  energetically,  "Sale  takes 
precedence  over  rent,"  as  others,  "Rent  takes  precedence 
over  sale." 

A  juridical  principle  thus  formulated  is  not  presented 
as  being  of  a  necessary  character,  nor  even  as  ra- 
tionally preferable  to  the  contrary  principle.  It  is  offered 
as  indisputable  in  positive  law,  before  a  given  tribunal. 
It  is  based  upon  the  authority  of  custom,  of  law,  and  it 
is  by  virtue  of  this  that  it  may  be  called  a  brocard.  "  In 
the  tribunal  of  matrimony,  the  worse  prevails  over  the 
better,"  says  Loysel.  This  adage,  widespread  in  countries 
where  customary  law  was  prevalent,  and  giving  as  it  did 
in  case  of  marriage  between  free  person  and  serf  the  most 
unfavorable  solution,  was  based  only  upon  the  authority 
of  custom. 

(6)  Brocards  Based  upon  Common  Sense  and  Experience. 
Finally,  others  emanate  from  the  common  sense  of  the 
people.  They  address  themselves  to  individuals  in  order 
to  give  them  advice  upon  what  they  ought  to  think  of  the 
law,  of  lawsuits,  or  of  any  specific  institution  or  situation. 
Often  gently  ironic,  sometimes  frankly  satiric,  they  are 
truths  of  experience  which  often  bear  much  weight  with 
individuals. 

"  The  husband  cannot  arise  too  early  in  the  morning  to 
sell  the  property  of  his  wife,"  is  a  criticism  of  the  regime 
of  community  as  it  has  fulfilled  its  functions  for  some  time 
in  France. 

In  monastic  orders  and  in  certain  political  and  justi- 
ciary assemblies  the  principle  of  the  vote  and  of  the  ma- 
jority is  introduced: 

"The  majority  rules."1 

"All  royal  birds  follow  one  flying  ahead  with  winged 
feet.  "2 

1  "Das  mehr  gilt." 

'"Aves  regales  unum  pravolantem  alatis  paedibus  consequuntur  omncs." 


320  RATIONAL  ELEMENT  IN  LAW       [Cn.X 

Of  the  same  kind: 

"Community  breeds  disputes."  l 
"To  go  surety  is  to  go  broke."  2 
"He  is  a  fool  who  consents  to  be  tried  by  inquest;  for 
the  greater  the  goss  p  the  surer  the  verdict."  3 
"A  friend  when  you  lend 
Is  your  foe  when  you  demand."  4 

Adages  of  this  kind  abound  in  common  law.  Roman 
law  has  transmitted  hardly  any;  that  is  well  known. 
Nevertheless,  the  following  propositions  may  be  con- 
sidered truths  of  common  sense  and  experience  rather  than 
juridical  adages: 

"  It  is  worth  less  to  have  the  suit  than  the  property."  6 
"  There  is  more  surety  in  a  thing  than  in  a  person."  6 
"A  thing  is  worth  as  much  as  it  can  be  sold  for."  7 

We  have  not  tried  to  make  a  strict  classification  of  these 
formulas,  which  are  of  an  extremely  varied  and  indefinite 
nature.  Moreover,  a  brocard  may  change  its  meaning 
according  to  circumstances.  Our  tentative  grouping 
abundantly  suffices,  however,  to  prove  that  if  brocards 
have  appeared  true  and  self-evident,  it  is  for  different 
reasons  and  because  they  have  been  based  upon  different 
authorities.  If  the  brocard  has  played  the  same  part  in 
law  that  the  axiom  has  in  the  sciences,  the  establishment 
of  this  fact  is  far  from  being  devoid  of  importance  for  the 
history  of  juridical  thought. 

Ill :  Historical  Importance  of  the  Brocard.  Those  who 
have  been  close  students  of  primitive  civilizations  believe 

'Communio  parit  rixas." 
'Biirgen  soil  man  wurgen." 

'Fol  est  qui  se  mest  en  enquete.    Car  qui  mieux  abreuve  mieux  preuve." 
'Au  preter  ami, 
Au  rendre  ennemi." 

"  Minus  est  actionem  habere  quam  rem." 
"Plus  cautionis  in  re  est  quam  in  persona." 
"Res  tantura  valet,  quantum  vendi  potest." 


§3]  THE  LEGAL  BROCARD  321 

that  the  law  was  shaped  in  the  form  of  very  short  pre- 
cepts, which  were  committed  to  memory  and  handed  down 
from  individual  to  individual  through  generations.  Their 
form  is,  so  to  speak,  unchangeable,  for  the  law  texts  were 
very  often  religious  decisions  of  a  sacred  character.  It 
was  thought  that  by  altering  the  form  the  substance 
would  be  altered.  Among  peoples  somewhat  more  ju- 
ridically developed  but  making  little  or  no  use  of  writing, 
certain  persons  made  a  specialty  of  the  study  of  precepts 
and  spent  their  lives  in  learning  and  studying  the  law. 
Numerous  works  have  resurrected  for  us  these  early 
judiciary  customs  of  the  most  varied  peoples. 

But  it  may  be  asked  whether  or  not  primitive  juridical 
precepts  are  brocards,  and  as  the  notion  of  the  brocard  is 
quite  vague,  the  question  is  not  altogether  an  easy  one 
to  answer.  However,  it  seems  that,  even  in  these  distant 
periods,  a  certain  dualism  is  observable  in  the  nature  of 
the  various  precepts  which  constitute  the  law.  Some  are 
orders  or  interdictions  couched  in  imperative  or  prohibi- 
tory terms,  directed  toward  a  specific  act  and  using  ap- 
propriate and  positive  expressions.  For  instance,  "The 
killing  of  a  vulture  is  forbidden,"  "To  work  upon  such  a 
day  of  the  week  is  forbidden,"  etc.  Others,  on  the  con- 
trary, do  not  give  any  direct  order,  but  establish  under 
an  often  imaginary  form  legal  truths  of  a  more  general 
order.  Thus,  according  to  Post,  it  is  said  among  the 
Bogos,  "Woman  is  a  hyena,"  to  express  that  she  has  no 
juridical  capacity.  Accordingly,  one  might  trace  back  to 
the  same  sources  the  distinction  between  positive,  sys- 
tematic law  and  emblematical,  axiomatic  law. 

But  as  soon  as  the  law  became  written,  the  early  pre- 
cepts in  their  entirety,  or  almost  so,  were  incorporated 
into  the  text.  Others  became  thus  incorporated  only 
accidentally  and  seldom  with  method  and  completeness. 
Their  transmission  became  all  the  more  difficult  as  ju- 
ridical writing  multiplied;  and  after  some  centuries,  legal 


322  RATIONAL  ELEMENT  IN   LAW      [Cfe.X 

proverbs  became  changed  and  were  lost  so  that  they  could 
no  longer  be  reestablished. 

Thus,  although  the  imperative  precepts  of  the  Roman 
law  of  the  Twelve  Tables  have  come  down  to  us,  at  least 
in  part,  their  numerous  contemporaneous  juridical  prov- 
erbs are  almost  unknown. 

Nevertheless,  the  Roman  jurists  of  the  classic  age  did 
not  disdain  to  gather  old  brocards,  perhaps  even  to  com- 
ment upon  them.  The  oldest  of  the  legal  masters,  Q. 
Mucius  Scaevola,  is  known  especially  for  his  "Liber  Singu- 
laris  opcop,"  of  which  some  fragments  remain  to  us. 
Gaius,  Paulus,  Ulpian,  Pomponius,  Modestinus,  etc., 
jurists  who  were  engaged  both  in  teaching  and  practice, 
and  others  engaged  only  in  practice,  made  collections  of 
"regulas,"  which  to  a  great  extent  may  be  considered 
brocards,  adages,  or  juridical  proverbs. 

For  teaching  purposes,  the  collections  were  generally 
gathered  together  in  a  single  book  ("liber  singularis  regu- 
larum").  These  formed  the  counterpart  of  the  "libri  in- 
stitutionum"  which  represented  positive  and  dogmatic 
law.  For  practical  purposes,  the  collections  of  adages 
were  more  voluminous.  They  constituted  as  many  as 
fifteen  volumes,  and  the  same  writers  who  compiled  a 
"liber  singularis  regularum"  for  the  use  of  their  pupils, 
also  made  more  complete  collections  for  the  use  of 
practitioners. 

For  all  that,  they  form  a  very  small  part  of  the  Pan- 
dects. After  the  compilers  had  exhausted  the  various 
juridical  subjects,  they  felt  it  their  duty  to  add  a  heading 
devoted  to  brocards  —  "de  diversis  regulis  juris  antiqui" 
—  which  were,  moreover,  except  for  a  small  part,  simply 
borrowed  from  the  collections  of  the  ancient  "regulae." 
These  old  collections  were  utilized  somewhat  at  hap- 
hazard, but,  it  seems,  rather  sparingly  in  all  the  books 
of  the  Digest. 

We  should  have  known  perhaps  little  more  of  the  old 


§3]  THE  LEGAL  BROCARD  323 

German  and  common  law  proverbs  had  not  the  interest 
in  archaeology  and  the  taste  for  the  picturesque  exercised 
their  ingenuity  to  discover  them.  The  purely  juridical 
writings  Would  have  allowed  them  to  sink  into  oblivion. 

The  juridical  life  of  the  Germans  at  the  time  of  their 
invasions  certainly  could  not  have  been  devoid  of  proverbs. 
Therefore  one  may  be  astonished  to  find  so  few  traces  of 
them  in  the  "Leges  Barbarorum."  Certain  of  these  laws 
are  not  lacking  in  vigor  of  style,  but  everything  about 
them  is  prosaic  and  lacks  the  imperative  quality.  The 
Salic  Law  is  a  body  of  propositions  regarding  regulations, 
pure  and  simple;  the  laws  of  the  Visigoths  and  Burgun- 
dians  enable  us  still  less  to  divine  the  picturesqueness 
and  the  fancifulness  of  the  formulas  which  were  ex- 
changed in  their  judiciary  assemblies.1 

Legislative  or  even  didactic  writings  assimilate  to  a 
very  limited  extent  the  adages  of  everyday  life;  these 
are  turned  over  to  practitioners  with  the  belief  that  they 
will  not  forget  them.  Such  is  the  case  in  the  customary 
law  of  European  countries.  The  customary  laws  of  the 
twelfth  and  thirteenth  centuries  are  certainly  living  works, 
free  from  all  scholasticism,  and  from  any  too  systematic 
plan,  or  dryness  of  form.  However,  Beaumanoir,  Pierre 
de  Fontaines,  the  Custumal  of  Normandy,  or  the  Assize  of 
Jerusalem,  uses  juridical  sayings  scarcely  at  all.  Nor  are 
they  to  be  discovered  more  often  in  the  statutes  of  towns, 
the  more  ancient  custumals,  or  the  legal  texts  of  a 
practice-genial  book.  Nevertheless,  it  is  very  certain 
that  the  thousand  proverbs  which  Loysel  gathered  to- 
gether in  his  genial  treatise  were  already  in  use,  and 
that,  if  certain  of  them  are  more  recent,  a  number  of 
others  have  been  forgotten.  Although  the ' '  Sachsenspiegel ' ' 
is  sometimes  quite  full  of  imagery,  it  seldom  alludes  to 
the  several  thousands  of  proverbs  which  were  sought 
out  and  brought  to  light  in  the  nineteenth  century. 

1  Cf.  Dernburg.  Die  Phantasie  im  Recht. 


324          RATIONAL  ELEMENT  IN  LAW      [Cn.X 

Yet  how  is  it  that  Romanists  of  the  same  1200s  and 
1300s,  and  even  earlier,  sought  especially  to  extract  from 
the  texts  of  Justinian  the  brocards  for  which  they  were  so 
hungry?  In  manuscripts  with  the  oldest  glosses,  the  "no- 
tabilia"  hold  the  place  of  honor.  When  the  interpreter 
can  find  in  a  text  a  very  general  principle,  he  tries  to  sum 
it  up  in  a  few  words,  to  give  it  the  form  of  a  proverb 
which  he  inscribes  in  a  prominent  place,  often  embellishing 
it  in  order  better  to  attract  the  attention.  It  may  be 
affirmed  without  fear,  in  view  of  pre-Accursian  glosses, 
that  the  seekers  after  brocards  were  among  the  most 
ancient  and  most  zealous  annotators  of  Justinian ;  and  we 
may  even  go  so  far  as  to  say  that  if  the  law  were  to  be 
proclaimed  written  reason,  it  would  be  due  to  the  multitude 
of  juridical,  logical  and  philosophical  proverbs  which  may 
easily  be  extracted  from  its  texts.1  The  heading  of  the 
Pandects  "de  regulis  juris"  is  the  first  to  be  commented 
upon  in  a  methodical  and  coherent  fashion,  more  particu- 
larly in  the  course  of  the  twelfth  century.  Later,  it  was 
perceived  that  general  principles  could  be  discovered  quite 
as  well  in  all  the  other  headings.  Pillius  is  handed  down 
to  us  as  having  made  the  first  collection  of  brocards;  but 
there  were  others  at  much  more  remote  periods,  perhaps 
before  the  school  of  Bologna.  In  any  case,  his  example 
was  followed  by  the  majority  of  the  great  glossators.  Be- 
sides, we  know  that  to  extract  principles,  "brocardizare," 
was  one  of  the  routine  exercises  in  the  teaching  of  the 
Romanists  of  the  Middle  Ages. 

We  may  summarize  with  certainty  this  picture  of  the 
juridical  life  of  the  Middle  Ages:  The  common  law 
authors  neglected  the  brocard,  the  Romanists  were  eager 
in  their  search  for  them. 

Moreover,  the  explanation  is  simple:  Every  one  seeks 
what  he  lacks.  Juridical  proverbs  in  the  language  of  the 
people  were  so  well-known  and  widespread  in  practice 

1  Cf .  the  frequency  of  Latin  maxims  in  Coke. 


§3]        THE  LEGAL  BROCARD        325 

that  a  Beaumanoir,  a  Jean  d'lbelin,  and  an  Eike  von  Rep- 
gau  thought  it  useless  to  reproduce  them.  Common  law 
was  lacking  in  dogmatic  and  systematic  works;  and  it  was 
to  fill  this  gap  that  they  labored.  Roman  law  was  very 
well  supplied  in  this  respect ;  but  if  its  expounders  had  not 
been  able  to  launch  into  practice  as  many  and  more  ad- 
ages than  the  popular  law  possessed,  it  would  never  have 
been  able  to  acquire  the  degree  of  popularity  necessary 
to  success. 

It  is  very  evident  from  history  that  the  axiomatic 
thought  expressed  by  the  brocard  has  always  shared  in 
the  development  of  the  law.  Ought  it  to  disappear  be- 
fore more  learned  methods?  That  is  of  small  importance 
to  us,  since  we  are  concerned  with  history,  that  is  to  say, 
with  the  past.  Nevertheless  let  us  note  that  the  brocard 
is  very  much  alive.  One  of  the  most  learned  counsellors 
of  the  French  Court  of  Cassation  attaches  great  impor- 
tance to  it.  He  has  taken  great  pains  to  collect  a  certain 
number  which  he  recommends  strongly  for  the  study  of 
young  magistrates. 

IV :  The  Role  and  the  Logical  Value  of  the  Brocard.  It 
is  with  juridical  proverbs  as  with  other  proverbs.  Some 
are  purely  fanciful  and  superficial,  while  others  condense 
much  wisdom  and  reflection.  The  unfortunate  thing  is 
that  it  is  very  difficult  to  distinguish  the  two.  For  it 
could  be  done  only  by  recommencing  the  intellectual  or 
experimental  labor  already  accomplished,  and  the  "raison 
d'etre"  of  the  proverb  is  just  to  save  us  that  labor.  The 
brocard  is  not  made  to  be  discussed  and  criticized.  It  is 
the  weapon  of  rapid  and  popular  discussion,  which  in 
order  to  act  upon  the  masses  must  be  employed  without 
too  many  scruples. 

The  most  elementary  juridical  rules  are  only  approxi- 
mative; that  is  to  say,  they  admit  of  exceptions.  Now 
the  principle  gains  in  logical  value  when  exceptions  are 
driven  out.  To  speak  correctly,  it  becomes  truly  a  prin- 


326          RATIONAL  ELEMENT  IN  LAW      [Cn.X 

ciple  only  when  all  possible  exceptions  can  be  enumer- 
ated. This  is  not  always  easy;  but  it  is  not  allowable  for 
the  logician  to  dispense  with  it,  and  this  is  why  the  legal 
scholar  will  always  be  the  object  of  suspicion  in  the  eyes 
of  the  public  at  large.  To  enunciate  a  precise  and  defi- 
nite rule,  but  to  add  that  in  a  certain  case  and  then  in 
another  and  later  in  still  another  case,  it  ought  not  be 
applied,  is  to  awaken  a  distrust  which  is  easily  under- 
stood without  being  justified.  In  the  struggle  between 
Roman  and  common  law  in  the  Middle  Ages,  the  former 
suffered  under  this  disadvantage.  By  virtue  of  a  very  old 
tradition,  which  antedates  the  School  of  Bologna,  the 
Romanists  always  gave  the  rule  with  its  exceptions,  the 
' '  regula  cum  suis  f allentiis. ' '  Thus,  to  cite  a  very  old  frag- 
ment published  long  ago  by  Fitting,  the  rule,  "The  profit 
should  be  his  who  runs  the  risk,"  is  immediately  limited 
in  its  applications  thus,  "at  least  for  property  owned  or 
found,  though  not  for  property  wrongfully  detained," 
etc.1  From  this  fragment  (without  doubt  of  the  eleventh 
century)  down  to  the  collection  of  Socinus  (the  sixteenth 
century)  the  jurist  accompanies  his  brocards  with  ex- 
ceptions, the  "casus  fallentiales,"  exceptional  cases,  which 
they  do  not  include. 

Thus  presented,  the  "regula?"  had  for  the  public  at 
large  the  appearance  of  being  traps,  which  could 
scarcely  render  them  popular.  Jurists  would  have  had 
to  exercise  much  skill  and  authority  to  triumph  over 
this  difficulty. 

Moreover,  it  was  very  seldom  that  one  could  determine 
accurately  all  the  exceptions  which  any  juridical  rule  per- 
mitted; and  when  a  new  and  improved  exception  presented 
itself,  any  confidence  which  a  collection  of  "fallentia" 
might  inspire  was  greatly  shaken.  Had  it  not  promised 
to  trace  every  principle  to  its  most  precise  meaning,  and 

l"Commodum  esse   debet,  cujus   et   periculum   est, in  re   tamen 

propria  et  in  re  inventa,  non  in  re  aliena  ab  alip  detenta," 


§4]  DEFINITION  327 

had  it  not  failed  in  this  promise  by  allowing  an  unfore- 
seen hypothesis  to  escape  him? 

It  may  be  laid  down  in  general  that  the  brocard  has 
this  triple  inconvenience: 

(a)  Its  logical  value  is  extremely  variable,  and  this 
value  in  nowise  influences  its  juridical  prestige. 

(b)  It  loses  in  authority  and  efficacy  in  proportion  as 
it  gains  in  exactness.     It  arouses  mistrust  or  aversion 
when  it  is  too  loaded  down  with  considerations  which  re- 
call to  its  true  value. 

(c)  Finally,  the  brocard  is  never  an  axiom,  a  truth 
which  does  not  need  to  be  demonstrated.    It  is  impossible 
to  affirm  that  it  never  admits  of  exceptions.    It  is  not  an 
axiom  in  logic. 

But  criticism  must  not  be  exaggerated.  If  the  juridical 
proverb  does  not  belong  in  logic,  it  is  nevertheless  an 
element  in  reasonable  thought.  It  forms  a  part  of  rational 
intellectuality,  that  sphere  of  practical  life  which  does 
not  bring  any  certainty  with  it,  but  is,  notwithstanding, 
the  product  of  very  sane  thought.  The  brocard  may  be 
disputed;  but  it  may  be  defended.  It  is  "reason,"  the 
ingenious  but  not  infallible  guide  which  should  never  for- 
get to  be  prudent. 

The  brocard  is  not  a  logical  axiom;  it  is  a  rational 
axiom. 

B.  Definition 

§  4.  Definition.  It  is  a  very  commonplace  truth  that 
before  discussing  anything,  it  is  well  to  define  the  object 
of  the  discussion.  Without  this  elementary  precaution, 
the  disputants  run  the  risk  of  talking  a  great  deal  with- 
out advancing  a  single  step,  and  of  tearing  out  each 
others'  hair  when  as  a  matter  of  fact  they  really  agree. 
This  is  universally  known,  but  seldom  taken  into  account, 
at  least  in  practical  life. 

In  juridical  life,  definitions  were  for  long  periods  dis- 


328  RATIONAL  ELEMENT   IN   LAW       [Cn.X 

pensed  with.  Even  some  highly  developed  and  subtle 
legal  works  presuppose  that  everybody  knows  what  they 
are  talking  about,  and  give  no  explanation  of  the  most 
complex  ideas.  In  other  periods,  quite  the  contrary,  the 
definition  dominates  juridical  science.  It  is  discovered 
in  the  writings  of  the  legislator  and  the  judge  as  well 
as  in  those  of  the  jurist.  Its  function  is  no  longer  simply 
to  clarify  debate.  It  has  become  an  active  factor  in  the 
formation  of  law.  It  suggests  to  legal  practice  solutions 
which  appear  incontestable.  It  directs  the  progress  of 
the  law,  and  it  is  in  this  sphere  of  its  usefulness  that  we 
shall  study  it  here.  Definition  is  an  intellectual  and  ra- 
tional force  in  juridical  development.  We  wish  to  dis- 
cover its  logical  value. 

I:  Different  Kinds  of  Definitions.  Philosophical  and 
dialectical  geniuses  of  various  temperaments  have  for  cen- 
turies toiled  over  the  theory  of  the  definition.  To  cite 
even  the  most  celebrated  of  them  would  be  too  long  a 
task.  But  it  must  be  remarked  that  the  most  widely 
divergent  tendencies  of  human  thought  would  be 
represented  by  them:  method  and  precision  as  well  as 
subtlety  and  critical  profundity.  The  definition  is  held 
in  honor  in  every  domain  of  scientific  and  intellectual 
achievement.  It  would  seem  that  after  so  much  study 
and  practical  utilization,  one  would  be  able  to  submit  an 
almost  perfect  definition  of  the  definition. 

Nevertheless,  no  one,  we  believe,  has  yet  been  able  to 
give  a  correct  definition  of  the  definition.  It  seems  that 
this  basis  of  all  method  has  not  yet  been  stated  method- 
ically enough.  The  science  of  logic  is  far  from  having 
achieved  its  task;  since,  upon  the  most  elementary  of  its 
conceptions,  it  offers  us  no  complete  system  but  only  a 
great  number  of  ideas  of  widely  varying  value  and  imper- 
fectly established  relations.  The  most  thoroughly  devel- 
oped discourse  upon  the  definition  may  have  an  appear- 
ance of  simplicity,  but  to  one  who  studies  it  closely,  it 


§  4  ]  DEFINITION  329 

will  soon  be  found  to  be  nothing  more  than  a  number  of 
unconnected  ideas. 

Such  as  it  is,  however,  the  theory  of  the  definition  in 
current  Logic  deserves  to  be  closely  studied  by  juriscon- 
sults who  are  interested  in  abstract  Law,  and  perhaps  by 
others  also.  Does  one  not  run  the  risk  of  living  in  a 
world  of  illusions  when  one  takes  as  simple,  easy  and  of 
absolute  value,  an  extremely  delicate  intellectual  opera- 
tion which  is  performed  every  instant  with  the  most  un- 
conscionable crudity? 

In  very  diverse  ages,  jurists  have  gone  to  school  to  lo- 
gicians and  dialecticians  for  the  intellectual  advantage  to 
be  gained  thereby.  If  an  abuse  of  the  application  of  logic 
to  questions  of  concrete  law  is  possible,  there  is  no  possi- 
bility of  any  such  abuse  of  knowledge.  If  the  subtlety  of 
analysis  is  not  always  in  place  in  practical  life,  it  has  a 
valuable  function  in  the  world  of  thought  which  without 
it  could  obtain  only  crude  and  false  ideas.  Moreover,  by 
showing  how  delicate  and  complex  may  be  that  which  at 
first  sight  appears  very  simple,  it  justifies  prudent,  practi- 
cal, common  sense,  which  hesitates  before  every  trenchant 
assertion.  Be  that  as  it  may,  the  essential  problems  con- 
cerning definition  have  not  been  solved,  so  far  as  I  know. 
If  it  is  not  the  business  of  the  jurisconsult  to  solve  them, 
he  ought  at  least  to  understand  them  in  order  to  appre- 
ciate the  value  of  an  instrument  which  he  handles  con- 
stantly. 

(1)  Definitions  of  Words  and  of  Things.  In  principle,  to 
define  is  to  give  the  meaning  of  words,  that  is  to  establish 
a  relationship  between  a  thing  and  a  sign.  Thus  the  aim 
of  every  definition  is  to  enable  specified  objects  to  be 
recognized  by  means  of  a  word;  consequently  this 
definition  becomes  at  the  same  time  that  of  a  word 
and  that  of  a  thing.  The  proposed  distinction  might 
to  better  advantage  be  termed  subjective  and  objective 
definition. 


330  RATIONAL  ELEMENT  IN   LAW      [Cn.X 

As  there  exists  between  a  word  and  a  thing  or  an  idea 
no  necessary  relation,  every  one  has  logically  the  right  to 
create  for  himself  a  terminology  according  to  his  own 
fancy,  to  call  "red"  what  others  call  "green,"  "good" 
what  is  "evil,"  to  apply  the  word  "marriage"  to  a  defi- 
nition of  the  testament,  etc.  It  is  very  seldom,  no  doubt, 
that  any  one  thus  abuses  himself  without  a  motive  in 
upsetting  the  meaning  of  words  fixed  by  usage.  But 
usage  never  gives  to  words  a  meaning  which  is  strictly 
accurate.  When  there  is  need  of  precision  in  expression, 
everyone  uses  more  or  less  this  faculty  of  defining.  The 
most  ordinary  words  of  everyday  language  never  have  so 
definite  a  meaning  but  that  they  may  be  understood  dif- 
ferently by  different  persons.  Book,  table,  chair,  door, 
etc.,  may  not  express  exactly  the  same  thing  for  every- 
body. In  the  domain  of  abstraction,  the  unlimited  right 
of  everyone  to  choose  his  language  is  absolutely  indispen- 
sable to  the  development  of  thought.  Each  new  concep- 
tion demands  a  new  definition.  One  may  use  old  verses 
for  new  subjects,  but  old  definitions  answer  no  purpose  as 
regards  new  ideas.  And  even  without  any  spirit  of  inno- 
vation whatever,  abstract  ideas  especially  in  the  domain 
of  the  moral  sciences  are  so  fluctuating  that  whoever 
wishes  to  use  them  must  put  forth  personal  effort  to  re- 
strict their  meaning. 

Now  logic  informs  us  that  when  an  individual  inserts 
into  a  definition  an  element  which  is  personal  to  himself, 
he  makes  a  definition  of  a  word  (no  matter  how  small 
may  be  the  proportion  of  his  initiative)  so  far  as  the  frag- 
ment which  he  has  introduced  is  concerned. 

Definitions  of  words,  or  subjective  definitions,  are  free, 
and  always  correct,  provided  the  thing  or  idea  which  cor- 
responds to  the  term  is  clearly  indicated.  But  they  are 
virgin  of  every  attribute  at  the  moment  of  their  formula- 
tion and  can  acquire  these  attributes  only  by  analysis, 
deduction  or  subsequent  observation. 


§  4  ]  DEFINITION  331 

Definitions  of  things  or  objective  definitions  are  not 
procured  so  cheap.  They  demand  a  preliminary  labor  in 
the  form  of  observation  of  things  just  as  they  have  been 
presented  and  of  ideas  just  as  they  have  been  formulated. 
If  this  fir'jt  labor  is  not  performed  with  the  most  rigorous 
exactitude,  the  definition  has  no  logical  value  whatever 
and  should  be  discarded  absolutely. 

But  by  way  of  compensation,  when  an  objective  defi- 
nition is  successful,  it  is  rich  with  all  the  past  of  experi- 
ence and  reflection,  which  may  be  considerable.  A  defi- 
nition of  the  testament  which  I  might  make  according  to 
my  fancy  could  easily  be  unassailable.  But  a  priori  and 
until  its  verification,  no  legislative  disposition  whatever 
can  be  explained  by  it.  A  definition  of  the  testament 
such  as  it  was  conceived  by  all  European  peoples  between 
any  two  particular  dates  will  be  much  more  difficult  to 
establish.  But  once  established,  it  may  serve  to  inter- 
pret an  indefinite  number  of  documents.  Thus  the  "pons 
asinorum"  of  the  sophists  is  in  the  cleverness  of  wilfully 
and  continually  confusing  the  definition  of  words  and  that 
of  things.  They  thus  obtain  for  nothing  that  for  which 
they  should  pay  dear,  and  may  attribute  to  a  conception 
of  their  choice  all  sorts  of  properties  to  which  it  has  no 
right. 

Furthermore,  such  confusion  is  far  from  being  always 
due  to  bad  faith.  The  most  conscientious  thinker  may 
easily  be  deceived  in  this  respect.  For  the  subjectivity  or 
the  objectivity  of  a  proposition  may  be  only  partial  and 
quite  hidden.  Very  often  the  jurist  who  fashions  defini- 
tions draws  inspiration  at  the  same  time  from  a  certain 
positive  law,  which  he  studies,  from  a  more  general  law 
common  to  the  civilized  world  at  large,  from  definitions 
elaborated  by  other  jurists,  and  from  his  own  concep- 
tions. As  trifling  as  may  be  the  lack  of  absolute  agree- 
ment between  its  different  elements,  his  work  is  logically 
incoherent  without  his  suspecting  it,  and  without  any 


332          RATIONAL  ELEMENT  IN   LAW      [  CH.  X 

one's  suspecting  it,  even  when  he  expresses  himself  with 
clearness  and  elegance. 

The  distinction  between  " definition  of  words"  and 
"definition  of  things"  raises,  moreover,  many  other 
questions  for  juridical  science  which  are  more  difficult 
and  less  understood;  but  to  our  great  regret,  we  cannot 
touch  upon  them  here. 

(2)  Indicative  and  Descriptive  Definitions.  When  logi- 
cians enumerate  the  conditions  of  a  good  definition,  the 
very  sage  counsels  which  they  give  in  this  respect  are  not 
always  equally  justified.  A  good  definition  is  one  which 
will  fill  its  r61e  properly.  But  is  this  r61e  always  the 
same?  Far  from  it;  it  varies  according  to  circumstances. 
Sometimes,  it  is  required  of  a  definition  that  it  make  the 
nicest  possible  distinction  between  a  concrete  object  or 
an  abstract  idea  and  any  other  which  might  be  confused 
with  it.  A  certain  and  easy  pointing  out  or  indication  is 
demanded  of  it.  It  matters  little  then  whether  or  not 
this  indication  is  intimately  bound  up  with  the  nature  of 
the  object,  or  whether  or  not  it  is  accidental.  If  it  is 
precise,  it  fulfills  its  role  of  identification.  To  identify  a 
man  it  is  sufficient  to  know  that  he  was  the  only  person 
who  passed  upon  any  particular  street  at  any  particular 
hour,  or  that  he  wore  any  particular  costume  in  any  par- 
ticular town.  These  accidental  circumstances  may  be 
most  valuable  in  distinguishing  him  from  every  other  man. 

If  to  the  question,  "  What  is  a  sale?  "  the  answer  is  given, 
"It  is  the  institution  which  is  studied  in  the  French  Civil 
Code  under  the  sixth  heading  of  the  third  book,"  a  defini- 
tion excellent  for  purposes  of  identification  has  been  given. 
It  is  an  affirmative  proposition  the  attribute  of  which  per- 
tains universally  to  that  subject  and  to  that  subject  alone. 

This  indication,  nevertheless,  is  completely  foreign  to 
the  idea  itself.  It  gives  no  information  upon  either  the 
essential  or  the  accidental  characteristics  of  the  sale.  It 
points  out  the  proximate  species,  "French  Civil  Code, 


§  4  ]  DEFINITION  333 

Book  III,"  and  the  specific  difference,  "heading  six."  It 
fulfills  all  the  conditions  required  by  logicians  as  far  as 
precision  is  concerned.  But  in  itself,  it  teaches  absolutely 
nothing  about  the  object  defined.  Many  would  hesitate 
perhaps  to  see  in  it  a  true  definition. 

On  the  other  hand,  the  descriptive  definition  —  some- 
times called  the  "essential"  definition  —  should  make  us 
recognize  the  essence  of  the  object.  But  what  is  the  "es- 
sence" of  a  thing?  What  is  the  "essence"  of  a  juridical 
conception?  A  formidable  problem,  which  we  shall  not 
touch  upon  but  which  it  would  be  necessary  nevertheless 
to  have  solved  definitely,  if  we  wished  to  bring  to  bear 
upon  the  nature  of  juridical  definitions  a  judgment  based 
on  logic.  In  reality,  we  shall  substitute  for  the  word  "es- 
sence," an  expression  less  rigid  but  consequently  more 
vague.  The  descriptive  definition  gives  "  the  most  salient 
characteristics"  of  an  institution.  The  better  one  knows 
how  to  group  these  characteristics  under  a  single  form,  the 
better  one  will  have  succeeded.  That  which  in  itself  en- 
ables the  defined  object  to  be  most  easily  recognized  is 
the  descriptive  definition  to  be  preferred,  even  when  it  is 
not  precise  enough  to  avoid  confusion  with  institutions  of 
secondary  importance.  Thus  a  definition  of  "testament" 
which  might  allow  a  confusion  with  the  institution  of 
contract  might  be  a  good  one  from  the  descriptive  point 
of  view,  for  the  testamentary  act  is  as  a  rule  in  much 
more  common  practice  than  the  contract  in  contemplation 
of  death. 

(3)  Empirical  and  Genetic  Definitions.  There  may  be 
condensed  in  a  definition  all  the  results  of  experience  in 
relation  to  a  given  object.  The  broader  the  observation, 
the  better  the  definition;  and  if  the  knowledge  of  the  ob- 
ject is  complete,  the  definition  becomes  perfect  or  abso- 
lute. The  result  of  the  empirical  definition  is  to  sum  up 
the  knowledge,  but  it  cannot  produce  it.  Nevertheless  its 
objective  and  scientific  character  is  incontestable. 


334  RATIONAL  ELEMENT  IN  LAW      [Cn.X 

The  science  of  geometry  enjoys  a  rare  privilege.  Prom 
the  very  beginning  it  can  prove  its  figures  in  such  a  defin- 
itive manner  that  the  most  thorough  and  detailed  study 
in  nowise  modifies  its  definitions.  The  work  consists  only 
in  disengaging  the  infinite  number  of  properties  which 
necessarily  result  from  the  first  formula,  but  which  could 
not  possibly  have  been  perceived  at  the  time  the  formula 
was  stated.  Thus  the  mere  definition  of  the  right-angled 
triangle  necessarily  involves  the  law  of  the  square  of  the 
hypothenuse.  Nevertheless,  it  is  impossible  to  perceive 
this  law  without  a  series  of  subsequent  deductions.  These 
definitions  are  called,  with  good  reason,  genetic,  because 
they  contain  the  germs  of  an  entire  series  of  truths  which 
could  be  developed  from  these  same  definitions.  They 
are  the  domain  of  the  most  highly  scientific  thought. 

Juridical  science  has  known  nothing  similar  up  to  this 
time.  It  must  not  be  denied,  however,  that  great  efforts 
have  been  made  and  are  still  being  made  to  adapt  purely 
scientific  methods  to  the  law.  To  appreciate  the  value  of 
these  efforts,  the  distinction  between  the  different  kinds 
of  definitions  is  of  prime  importance.  We  shall  have  oc- 
casion to  insist  upon  this  point  later.  But  historically, 
what  was  the  nature  of  the  logical  processes  employed  in 
the  fashioning  of  our  modern  legal  systems  ?  This  is  what 
we  are  going  to  study. 

II :  History  of  the  Definition  in  Law.  The  relations  be- 
tween juridical  thought  and  definition  have  been  very 
diverse.  For  a  long  time  there  was  no  connection  be- 
tween the  two,  and  long-lived  civilizations  developed 
without  determining  the  precise  meaning  of  legal  terms. 
Very  bulky  volumes  on  law,  works  which  seem  solidly 
based  and  logically  coordinated,  took  no  pains  to  define 
the  highly  complex  and  ambiguous  words  with  which  the 
text  abounded. 

At  other  eras  of  juridical  thought,  the  definition  is 
everything.  This  it  is  which  furnishes  irrefutable  argu- 


§4]  DEFINITION  335 

ments  to  practice.  When  it  has  spoken  there  is  nothing 
further  to  be  said.  Every  other  just  or  practical  consid- 
eration is  but  of  secondary  interest.  It  is  in  the  defini- 
tion that  the  decisive  reason  of  the  judgment  is  to  be 
found.  The  opposition  between  the  theoretical  and  the 
practical  methods  has  never  before,  perhaps,  been  so  evi- 
dent as  now.  The  faculty  of  defining  is  characteristic  of 
mental  culture  if  not  of  mental  power. 

(1)  Absence  of  Definition  Among  Primitive  Peoples. 
Primitive  minds  have  no  need  of  expressing  clearly  what 
they  think,  still  less  everything  that  they  think.  For  them, 
the  word  is  not  yet  the  symbol  of  the  idea.  They  are  not 
yearning  to  disclose  the  intellectual  labor  which  is  taking 
place  within  them  and  from  which  they  wish  to  derive 
the  exclusive  benefit.  Besides,  they  do  not  grasp  very 
clearly  the  relation  between  their  intellectual  activity  and 
language.  On  the  other  hand,  the  "word"  is  not  for 
them  a  relative  and  conventional  thing  whose  limits  each 
may  fix  according  to  his  fancy.  The  "word  "has  its  indi- 
vidual power,  its  absolute  value;  its  authority  is  preter- 
natural. The  name  of  a  person  or  of  a  town  is  not  chosen 
at  random;  often  a  sorcerer  or  soothsayer  is  consulted.  A 
divinity  or  more  simply,  a  beneficent  spirit,  is  thought  to 
have  revealed,  at  the  moment  of  its  foundation,  the  name 
which  alone  could  assure  to  the  city  its  prosperity  through 
the  coming  centuries.  Everyday  language,  especially 
procedural  language,  shares  in  this  religious  origin. 
Individuals  are  not  allowed  to  handle  it  according  to 
their  fancy. 

In  a  primitive  assembly  of  the  people,  what  accused 
person  would  dare  to  dispute  the  meaning  of  a  word? 
Such  an  act  would  seem  equally  stupid  and  sacrilegious. 
To  define,  to  impose  limits  to  the  power  of  a  juridical 
term,  can  belong  to  no  human  authority. 

What  certain  privileged  persons  can  do,  under  the  in- 
spiration of  supernatural  beings,  is  to  connect  a  certain 


336  RATIONAL  ELEMENT  IN   LAW       [Cn.X 

act  or  a  certain  conception  with  a  given  word,  but  with- 
out claiming  in  any  way  to  fix  the  extent  of  its  meaning. 
This  is  a  logical  process  the  reverse  of  the  definition,  quite 
as  much  as  induction  is  the  reverse  of  deduction.  So  that 
the  majority  of  old  juridical  terms  have  no  logical  mean- 
ing. For  logically  a  word  takes  its  meaning  only  through 
convention,  that  is  to  say,  through  definition,  since  the 
earliest  civilizations  never  fashioned  definitions;  their. vo- 
cabularies eluded  any  precise  signification.  Many  histo- 
rians have  committed  the  grave  mistake  of  trying  to  find 
in  ancient  terminologies  an  exactness  which  does  not 
exist.  To  define  the  juridical  expressions  of  primitive 
customs  and  even  of  relatively  modern  customs,  is  to  mis- 
apprehend entirely  the  psychology  of  earlier  ages.  In 
saying  this  we  mean,  be  it  understood,  to  criticize  only 
those  —  and  there  are  numbers  of  them  —  who  demand  of 
the  past  what  the  past  cannot  give  them,  namely,  a  rig- 
idly fixed  vocabulary. 

Certain  old  juridical  words  may  correspond  to  various 
ideas,  although  it  is  impossible  to  base  one  upon  the  other 
or  make  them  agree.  But  if  they  have  no  precise  mean- 
ing, they  have  no  precise  effects.  It  is  not  easy  to  tell 
what  they  intend  to  say  nor  whence  they  derive  their 
authority,  but  it  is  easy  to  determine  in  what  they  will 
result.  All  acts  which  lead  towards  the  same  effects,  al- 
though they  may  be  of  very  different  nature,  have  a  ten- 
dency to  become  centered  upon  a  vocal  sound. 

Thus  in  the  West  Gothic  law: 1  If  any  one  kills  a  per- 
son in  a  church,  it  is  a  "  nithingsvoerk,"  a  crime  which 
cannot  be  expiated  by  a  penalty.  ...  If  any  one 
kills  a  person  at  a  "Thing,"  it  is  a  "nithingsvoerk." 
.  .  .  If  any  one  takes  revenge  after  peace  has  been 
promised,  it  is  a  "nithingsvoerk."  ...  If  any  one 
cuts  off  both  hands  of  a  person,  if  any  one  kills  a 
sleeping  person,  it  is  a  "nithingsvoerk."  .  .  .  It  is  a 

1  Lex  Visigothorum,   Ed.  Beauchet,  p.  168. 


§  4  ]  DEFINITION  337 

''nithingsvoerk"  to  carry  a  shield  on  this  side  of  the 
forest.  ...  If  any  one  binds  a  person  to  a  tree  in 
the  forest,  it  is  a  "nithingsvoerk,"  .  .  .  etc.  .  .  . 

Thus  it  is  seen  that  there  is  ranged  under  a  common 
expression  a  great  number  of  acts  of  very  diverse  nature, 
so  that  the  word  itself  can  be  precise  only  in  the  effects 
produced;  that  is  to  say,  it  escapes  all  definition. 

The  French  Penal  Code  has  often  been  reproached  — 
and  with  good  reason  —  for  defining  crimes,  misdemeanors 
and  offences  by  the  penalties  attached  to  them.  This  is 
clearly  a  fault  of  logic,  a  survival  of  very  old  habits  of 
thought. 

(2)  Origin  of  Juridical  Definition.  The  earliest  juridical 
definitions  did  not  arise  from  the  anxiety  to  determine 
the  precise  boundaries  of  abstract  conceptions  in  order  to 
understand  them  better.  The  desire  to  establish  a  suffi- 
ciently exact  agreement  between  the  sign  and  the  thing 
signified  came  to  the  jurist  only  with  the  influence  of  phil- 
osophers. The  earliest  juridical  definitions  were  dictated 
by  practical  considerations  which  may  be  grouped  in  two 
classes: 

(a)  In  the  first  place,  the  necessity  of  translating  legal 
terms.  All  the  ancient  peoples,  as  well  as  those  of  mod- 
ern times  who  have  played  an  important  part  in  civiliza- 
tion, have  changed  their  juridical  language  in  the  course 
of  their  history.  At  first  they  changed  it  in  a  way  made 
natural  and  necessary  by  the  simple  evolution  of  the 
tongue,  which  was  so  incessantly  changed  and  modified 
that  after  a  lapse  of  some  centuries  the  terminology  was 
often  completely  transformed.  Often  the  juridical  vocab- 
ulary remained  stationary  a  long  time,  following  school 
traditions.  In  this  case,  it  became  incomprehensible  to 
the  common  people,  and  special  works  were  necessary  to 
bring  it  within  the  reach  of  those  who  wished  to  instruct 
themselves.  Thus  many  peoples,  among  those  who 
have  had  the  most  brilliant  destinies  and  the  richest  ju- 


338          RATIONAL  ELEMENT  IN   LAW      [CH.  X 

ridical  histories,  have  entirely  changed  their  language  one 
or  more  times,  adopting  for  one  reason  or  another  the 
speech  of  a  conquered,  a  conquering  or  simply  a  neighbor- 
ing race.  In  which  case,  it  was  necessary  to  explain  in 
the  new  language  the  words  used  in  the  old  systems  of 
jurisprudence.  Sometimes  an  ancient  tongue  was  pre- 
served in  whole  or  in  part  through  its  use  by  men  of  let- 
ters, among  whom  jurists  are  to  be  included.  In  such  in- 
stances it  was  none  the  less  necessary  to  establish  rela- 
tions between  the  language  of  the  scholar  and  that  of  the 
common  people.  Numbers  of  examples  might  easily  be 
taken  from  almost  anywhere.  The  long-lived  Assyrian- 
Babylonian  and  the  Hindu  civilizations,  ancestors  of 
Semitic  and  Indo-European  legislations,  might  be  placed 
in  the  first  rank.  The  modern  history  of  western  Europe 
would  show  us  the  Latin  and  the  German  idioms  continu- 
ally acting  and  reacting  upon  one  another  in  the  juridical 
terminology  of  the  Prankish  period  and  of  the  Middle 
Ages.  Finally,  we  might  cite  England  as  a  particularly 
interesting  example;  in  a  relatively  short  space  of  time, 
this  country  changed  its  juridical  tongue  four  times  from 
top  to  bottom,  and  mingled  expressions  borrowed  from 
four  periods,  —  the  Latin,  the  Saxon,  the  French  and  the 
English. 

Every  time  that  there  is  any  special  idiom  in  the  law 
it  must  be  explained;  to  explain  it  is  to  translate  it;  to 
translate  it  is  to  define  it.  In  order  to  affirm  that  two 
expressions  are  equivalent,  their  meanings  must  be  com- 
pared ;  accordingly,  they  must  be  disengaged.  There  will 
be  a  tacit  definition  when  the  translator  confines  himself 
to  placing  the  popular  word  by  the  side  of  the  technical 
word;  there  will  be  an  expressed  definition  when,  feeling 
the  necessity  of  a  more  complete  explanation,  he  en- 
deavors, by  means  of  paraphrases,  to  make  the  content 
of  a  foreign  or  an  archaic  word  better  understood. 
These  definitions  will  be  worth  what  they  are  worth, 


§  4  ]  DEFINITION  339 

they  always  bring  juridical  thought  nearer  to  a   more 
systematized  method. 

When  the  translation  is  addressed  to  a  limited  public, 
every  difficult  word  may  be  explained  as  it  occurs  in  the 
text :  if  it  is  directed  to  a  wider  public,  it  will  become  nec- 
essary to  arrange  special  collections  devoted  solely  to  the 
explanation  of  juridical  terms.  Accordingly,  numerous 
works  under  the  name  of  " lexicon,"  "exposicio  termi- 
norum,"  "vocabulorium,"  "termes  de  la  lay,"  or  other 
similar  titles,  arrange  the  legal  terminology  in  alphabetical 
order  or  according  to  the  subject  matter.  Besides,  dic- 
tionaries of  the  law  are  collections  of  definitions  to  only 
a  very  unequal  extent.  Some  of  them  are  rather  collec- 
tions of  juridical  principles;  such  a  one  is  the  great  dic- 
tionary of  Albericus  of  Rosciate.  But  a  great  many 
others  in  all  countries  are  devoted  almost  exclusively  to 
fixing  the  meanings  of  words  and  are  therefore  in  the  cate- 
gory which  is  of  interest  to  us  here. 

(b)  In  a  second  group  may  be  classed  controversial 
definitions,  —  those  which  arose  in  the  course  of  the  law- 
suits themselves.  Since  the  words  had  here  lost  the 
mysterious  prestige  which  forbids  any  discussion  of  their 
meaning,  the  pleaders  threw  themselves  with  enthusiasm 
into  this  new  form  of  discussion,  which  was  open  to  the 
worst  causes  and  was  always  very  embarrassing  to  the 
judge.  Cicero,  the  great  theorist  of  the  definition,  has 
done  much  to  propagate  it  and  to  make  its  exigencies 
known  to  jurists.  His  definition  of  the  "gens"  is  justly 
celebrated.  But  if  he  understands  the  exigencies  of  logic, 
he  also  understands  his  trade  as  a  lawyer.  Thus  in  the 
"Oratoriae  Partitiones"  (§52)  he  tells  us:  "In  this 
manner  ordinary  words  are  assigned  to  the  accuser  and 
doctrinal  words  to  the  defendant.  Which  of  the  two 
will  win  depends  upon  whether  the  one,  by  defining  and 
describing  the  word,  will  better  reach  the  understanding 
and  imagination  of  the  judge,  or  the  other  will  approach 


340  RATIONAL  ELEMENT  IN   LAW      [  CH.  X 

more  nearly  to  the  ordinary  force  of  the  word  and  that 
perception  of  it  which  the  listeners  hold  incomplete  in 
their  minds." 

Time  and  again  he  insists  upon  the  fact  that  great  law- 
suits become  reduced  to  questions  of  definition.  Here  is 
an  example  which  occurs  several  times  in  his  works.  A 
law  intends  to  favor  the  sailor  who  remains  at  his  post 
during  a  tempest,  by  giving  him  the  share  of  those  who 
quit  the  ship  to  save  their  lives.  "Those  who  leave  the 
ship  in  a  storm,  shall  lose  everything;  the  ship  and  its 
cargo  shall  belong  to  those  who  remain  on  the  ship."  1 
It  happened  that,  of  a  number  of  sailors,  some  embarked 
in  a  rowboat  but  from  there,  by  means  of  ropes,  tried  to 
tow  the  boat  to  port,  while  the  others  remained  upon  the 
ship  itself,  but  only  because  they  were  too  frightened  or 
too  ill  to  save  themselves.  They  remained  without 
budging  an  inch  or  contributing  in  any  way  to  the  salvage 
of  the  vessel.  Would  it -be  necessary  by  virtue  of  the 
aforesaid  law  to  give  everything  to  these  last,  to  the  detri- 
ment of  the  others?  This  is  a  question  of  definition, 
says  Cicero.  In  order  to  arrive  at  a  solution,  it  is  ex- 
pedient to  define  the  expressions,  "navem  relinquere,"  "in 
navi  remanere,"  and  the  word  "navis"  itself.2 

Beaumanoir,  who  has  small  liking  for  definitions,  feels 
their  necessity,  however,  in  certain  cases,  because  of  the 
fact  that  the  parties  in  the  lawsuit  cavil  over  the  mean- 
ings of  words.  Thus  in  the  "Coutumes  de  Clermont  en 
Beauvaisis"  (No.  670)  he  says:  "Many  are  the  lawsuits, 
involving  goods  in  dispute,  where  one  of  the  parties 
wishes  to  carry  off  the  things  as  personal,  while  the  other 
party  claims  that  they  are  heirlooms.  And  in  order  to 
clear  up  the  uncertainty  as  to  which  is  right,  we  shall  in 
this  chapter  consider  what  things  are  personal  and  what 
are  heirlooms." 

14'Qui   in   adversa   tempestate   navitn   relinquerint   omnia   amittunto:  eorum 
navis  et  onera  sunto  qui  in  navi  remanserint." 
'  De  Inventione  II,  §  31,  Ad  Herennium  I,  §  23. 


§  4  ]  DEFINITION  341 

In  imitation  of  the  Digest  of  Justinian,  the  collection 
of  the  Decretals  of  Gregory  IX  has  its  next  to  the  last 
heading  devoted  to  the  meaning  of  words  "De  verborum 
significatione."  Under  this  title  are  to  be  found,  not  ab- 
stract doctrinal  definitions,  but  answers  which  various 
popes  have  given  to  questions  which  have  been  addressed 
to  them  by  bishops  upon  the  meaning  of  a  certain  number 
of  words.  Here  likewise  it  is  the  conflict  of  private  in- 
terests which  has  given  rise  to  the  necessity  of  defining. 

This  investigation  of  the  meaning  of  words,  brought 
about  by  the  caviling  between  the  parties,  may  be  more  or 
less  objective,  or  subjective,  according  to  circumstances. 
For  it  is  often  a  question  of  interpreting  the  intention 
of  the  parties  and  of  establishing,  not  the  general  and  ab- 
solute meaning  of  an  expression,  but  what  it  represents 
under  particular  circumstances  in  the  mouth  or  from  the 
pen  of  a  particular  person.  The  jurist  ought  to  under- 
stand the  meaning  of  contracts  between  private  individ- 
uals, the  language  of  the  notary  and  the  business  man, 
as  well  as  that  of  the  judge  and  the  lawmaker.  He  asks 
himself  what  a  particular  person  under  particular  condi- 
tions meant  to  say.  For  each  term  he  makes  a  series 
of  relative  definitions,  which  perhaps  will  not  agree  in  any 
way  with  the  objective  and  absolute  definition  which  he 
would  have  to  formulate  in  a  rational  legislative  system. 
Since,  whether  through  ignorance  or  negligence,  no  one 
is  strictly  accurate  in  his  language,  juridical  terminology 
is  always  more  or  less  loose,  and  justice  demands  that  it 
be  broadly  interpreted.  "Frequently,  while  the  proper 
signification  of  words  is  striven  after,  the  true  meaning 
is  lost,"1  Pope  Gregory  very  rightly  says.  But  from  the 
point  of  view  of  pure  logic  this  easy  lack  of  constraint  in 
expression  creates  vicious  intellectual  habits.  The  con- 
tinual employment  of  these  definitions  "ad  utilitatem 
causae  accommodatae,"  to  use  Cicero's  expression,  may 

'"Plerumque  dum  proprietas  verborum  adtenditur,  sensus  veritas  amittitur." 


342  RATIONAL  ELEMENT  IN   LAW       [CH.X 

cause  the  practitioner  to  lose  the  faculty  of  analyzing 
with  scrupulous  precision  in  cases  where  the  retention  of 
such  power  would  be  useful  to  him. 

(3)  Early  Defective  Forms  and  Later  Development  of  Ju- 
ridical Definition.  It  is  not  astonishing  therefore  that  the 
old  practitioners  have  even  in  their  writings  given  par- 
ticularly defective  forms  to  their  definitions.  The  defini- 
tion "it  is  when  ..."  is  a  universal  psychological 
phenomenon;  it  is  a  necessary  state  of  mind  which  pro- 
ceeds from  the  concrete  to  the  abstract.  We  know  that 
there  is  never  an  examination  in  any  country  where  pupils 
of  limited  cultivation  fail  to  use  it.  No  more  do  the  old 
jurisconsults,  especially  when  they  have  frequented  court- 
rooms rather  than  school-rooms.  The  good  Beaumanoir 
does  not  himself  deny  its  use:  "A  novel  disseisin  is 
when  .  .  .  .";  "A  fresh  disorder  is  when  .  .  .  ."  l 

Among  English  jurisconsults,  positive  and  practical 
minds  as  they  are,  definitions  in  "it  is  when"  abound. 
Moreover,  it  is  to  be  found  in  all  countries.  For  childish 
enough  as  the  formula  seems,  it  is,  nevertheless,  not 
without  value  and  corresponds  to  a  state  of  logical  strength 
which  it  would  not  be  uninteresting  to  study  at  greater 
length. 

The  etymological  definition  is  employed  by  more  cul- 
tivated minds.  It  was  particularly  dear  to  the  theologians 
of  the  Middle  Ages.  The  canonists  were  also  very  partial 
to  it  and  borrowed  freely  from  the  "Liber  Etymologiarum " 
of  Isidorus.  That  section  of  the  Decretals  which  we  have 
cited  uses  them  also  as  well  as  others,  and  departs  from 
the  etymology  to  make  the  meaning  precise.  For  ex- 
ample :  " '  Testes '  (witnesses)  were  in  ancient  times 
called  '  superstites '  because  they  were  brought  upon  the 
suit  standing  for  hearing;  now  a  part  of  the  word  having 
been  discarded,  they  are  called  '  testes.'  "2  The  Romanists 

» Op.  cit.,  No.  955  and  No.  957. 

*"  Testes  antiquitus  superstites  dicebantur,  eo  quod  super  causae  statu  profere- 
bantur,  nunc  parte  ablata  nominis,  testes  vocantuit" 


$  4  ]  DEFINITION  343 

also  created  etymologies,  but  in  a  more  incidental 
fashion,  and  Bartolus  advises  one  to  be  distrustful  of 
them:  "Definition  is  more  to  be  watched  than  etymology 
or  allusion."  l  The  etymological  definition  presupposes 
a  certain  amount  of  learning;  but  from  the  logical  point 
of  view,  it  is  even  more  defective  than  the  definition 
beginning  "it  is  when  ..."  because,  in  the  first  place, 
the  etymologies  of  the  Middle  Ages  were  nearly  always 
false,  and  especially  because  there  is  no  necessary  rela- 
tion between  the  origin  of  a  word  and  its  meaning. 

In  the  twelfth  and  thirteenth  centuries,  when  prac- 
titioners of  common  or  of  feudal  law  nearly  always  neg- 
lected to  explain  legal  terms  or  did  it  very  awkwardly, 
and  when  the  canonists  were  distrustful  of  too  precise 
definitions,  the  jurisconsults  of  the  schools  followed  an 
entirely  different  method.  Regularly  and  for  each  in- 
stitution, the  definition  was  the  basis  which  took  pre- 
cedence of  all  others.  From  it  all  the  developments  of 
the  chapter  had  to  follow  as  deductions  from  a  principle. 
Each  element  of  the  formula  was  taken  apart  and  studied 
more  or  less  minutely.  Every  question,  even  one  of 
detail,  had  to  be  connected  directly  or  indirectly  with 
the  one  following.  This  method  was  used  successfully 
for  centuries  and  the  works  which  it  shaped  are 
innumerable. 

The  jurists  had  borrowed  it  from  scholastic  philosophy. 
The  rules  of  definition  had  been  found  in  the  Roman  texts 
themselves.  The  Roman  jurisconsults  had  learned  much 
in  this  respect  from  Cicero  and  Quintilian.  Upon  one 
side  as  well  as  upon  the  other,  the  law  owes  to  philosophy 
this  first  element  of  its  logic. 

When  the  definition  had  conquered  the  domain  of  the 
law,  when  it  had  forced  itself  upon  the  lawmaker  as  well 
as  upon  the  lawyer,  it  disported  itself  as  an  absolute  but 
debonair  monarch,  who  may  have  the  last  word  when  he 

1 "  Diffmitio  magis  attenditur  quam  etymologia  seu  allusio." 


344  RATIONAL  ELEMENT  IN   LAW      [Cfc.X 

wishes  but  whose  authority  is  at  the  same  time  lax  and 
capricious.  It  has  the  air  of  governing  everything;  in 
reality,  it  allows  itself  to  be  governed  by  circumstances. 
It  is  supposed  to  be  obeyed,  but  provided  that  proper 
forms  are  observed,  many  liberties  can  easily  be  taken 
with  it.  Moreover,  it  has  rendered  great  services  in  this 
way.  If  its  rule  had  been  too  severe,  it  would  have  been 
more  unbearable  without  being  more  justified. 

Ill :  The  Logical  Value  of  the  Juridical  Definition.  Be- 
fore all  else,  it  behooves  us  to  state  very  clearly  that  we 
are  studying  here  juridical  method  as  it  presents  itself 
to  us  in  the  past  and  in  the  present.  We  are  observing 
the  nature  of  the  intellectual  forces  which  have  been  at 
work  and  are  still  at  work  under  our  very  eyes  in  the 
building  up  of  the  law. 

What  might  juridical  technic  be,  what  ought  it  to  be? 
Can  we  hope  for  its  transformation?  If  so,  what  would 
be  the  scope  of  this  transformation?  These  are  present- 
day  questions  of  the  greatest  interest,  but  they  are 
foreign  to  our  work,  which  bears  upon  the  philosophical 
principles  of  the  history  of  law  and  not  upon  the  philos- 
ophy of  law. 

Likewise,  it  is  to  the  philosophy  of  law  that  another 
problem  must  be  referred:  What  technic  is  best  adapted 
to  attaining  the  most  objective  and  the  most  scientific 
conceptions  of  law?  We  shall  have  to  devote  a  chapter 
to  these  theories  of  "Pure  Law,"  not  to  discuss  them  as 
such,  but  in  order  to  know  whether  they  have  been  able 
to  introduce  new  logical  forces  into  the  evolution  of  the 
law,  or  whether  it  is  probable  that  they  will  be  able  to  do 
so.  For  the  time  being,  we  are  avoiding  them  com- 
pletely. It  is  well  to  insist  upon  this  fact  here,  because 
the  methods  called  scientific  ought  to  have  scientific 
definitions  —  empirical  or  genetic  —  that  are  unassailable  if 
they  wish  to  justify  their  pretensions.  Not  having  to 
judge  them,  we  put  them  out  of  consideration. 


§4]  DEFINITION  345 

In  the  formation  of  our  modern  legal  systems  as  well  as 
in  the  technic  of  our  positive  present-day  laws,  the  defini- 
tion is  an  operation  of  considerable  efficacy,  and  of  great 
rational  value,  but  without  any  strictly  logical  value. 
Definitions  do  not  answer  to  the  simplest  exigencies  of 
scientific  thought,  and  still  less,  be  it  understood,  to  the 
most  complex  exigencies.  There  are  a  thousand  reasons 
why  the  term  "logical"  should  be  denied  them.  We  shall 
cite  but  a  few,  however. 

Juridical  speech  is  formed  generally  of  words  in  current 
usage  to  which  a  technical  meaning  has  been  given. 
"Dowry,"  "franchise,"  "partnership,"  "community," 
"adoption,"  "condition,"  "acknowledgment,"  "real 
estate,"  "execution,"  etc.,  have  a  broad  and  popular  as 
well  as  a  narrow  and  technical  meaning.  The  lawyer 
and  lawmaker  who  need  every-day  language  quite  as 
much  as  technical  language,  very  often  use  the  same 
words  in  a  very  different  sense.  The  lawmaker  has  his 
moments  of  weakness  and  forgets  his  own  definitions. 
He  does  this  all  the  more  easily  since  legislation  is  only 
a  fictitious  unity  to  which  the  labor  of  an  infinite 
number  of  individuals  has  contributed. 

Contradictions  in  terminologies  in  one  and  the  same 
work  or  in  one  and  the  same  piece  of  legislation  are  not 
an  irretrievably  serious  matter.  Besides,  they  may  be 
avoided  if  one  is  sufficiently  attentive.  The  particular 
affectation  of  the  conscientious  jurisconsult  is  to  give  to  his 
vocabulary  an  appearance  of  precision  which  denotes  the 
true  elegance  of  the  thought.  This  ideal  of  a  writer  who 
would  always  give  the  same  well-defined  meaning  to  each 
of  his  words  is  seldom  realized.  It  is,  however,  in  every 
instance  within  the  range  of  realization. 

A  much  more  serious  matter  is  that  juridical  definitions 
are  always  ambiguous  and  from  several  points  of  view  at 
the  same  time.  Are  they  definitions  of  words  or  of  things? 
We  have  seen  that  they  are  a  little  of  both.  It  is  never 


346  RATIONAL  ELEMENT  IN  LAW      [Cn.X 

known  exactly  whether  the  framer  of  the  law  or  its  inter- 
preter intended  to  inscribe  an  idea  as  it  existed  outside 
of  his  conception  or  according  to  his  conception. 

Are  definitions  indicative  or  descriptive?  As  far  as 
doctrine  is  concerned,  every  author  clearly  has  the  right 
to  use  both,  provided  he  conforms  to  the  rules  of  logic 
and  makes  it  distinctly  understood  what  point  of  view  he 
assumes.  The  framer  of  the  text  of  a  piece  of  legislation 
ought  not  to  enjoy  the  same  liberty;  since  his  prescrip- 
tions are  always  of  an  imperative  nature,  he  is  bound  to 
give  those  whom  he  commands  clear  and  complete  ex- 
planations. These  definitions  ought  always  to  be  logically 
descriptive  and  essential ;  they  ought  always  to  contain  the 
essence  of  each  institution.  In  reality,  this  is  far  from 
being  the  case,  and  the  attentive  reading  of  any  code 
whatsoever  would  prove  it  abundantly.  Nevertheless, 
let  us  not  insist  upon  this  fault  which  is  but  accidental  and 
might  be  rigorously  corrected. 

But  here  is  something  much  more  serious:  If  the 
essence  of  an  institution  is  incorporated  in  a  formula, 
by  that  very  act  its  sphere  of  practical  application  is 
delimited;  that  is  to  say,  by  that  act  there  is  decided 
by  implication  an  infinite  number  of  concrete  cases  of 
which  the  writer  had  not  the  least  idea  at  the  time  he 
framed  the  formula.  The  future  may  make  the  legis- 
lator pay  dear  for  his  imprudence.  He  may  see  himself 
caught  in  this  dilemma;  theoretical  incoherence,  or 
disastrous  practical  result. 

Article  2071  of  the  French  Civil  Code  defines  the 
pledge  as  "a  contract  by  which  a  debtor  surrenders  a 
thing  to  his  creditor  as  security  for  the  debt. "  The  essence 
then  of  this  contract  is  that  the  debtor  "surrenders  the 
thing  to  the  creditor."  At  the  time,  the  definition  was 
correct;  no  pledge  without  the  surrender  of  the  thing  into 
the  hands  of  the  creditor.  But  at  that  period  a  stock  of 
goods  was  not  an  instrument  of  credit.  When  it  was 


§  4  ]  DEFINITION  347 

found  out  how  useful  it  would  be  to  make  this  an  instru- 
ment of  credit  in  order  to  permit  the  proprietor  of  a  firm  of 
good  standing  to  procure  money,  the  recourse  to  the  pledge 
was  inevitable.  If  there  had  been  any  intention  of  hold- 
ing to  the  formula  of  the  Code,  when  the  merchant  gave 
a  pledge  on  his  stock  he  would  have  had  to  put  his 
money  lender  at  the  head  of  his  business  and  give 
over  the  management  of  it  to  him  until  the  payment 
of  the  debt,  which  would  have  been  absurd.  Judicial 
decision,  and  statute  afterwards,  sanctioned  a  pledge 
where  nothing  is  surrendered,  so  that  the  formula  of 
the  Civil  Code  is  thus  devoid  of  meaning,  and  it 
hardly  seems  any  longer  possible  to  give  any  definition 
whatever  of  the  pledge. 

Judicial  decision  was  right,  be  it  understood.  The 
practical  policy  was  too  great  to  permit  of  any  hesitation. 
But  had  practical  policy  been  of  small  account,  courts 
would  have  hesitated  to  mar  a  text,  and  very  legitimate 
interests  might  have  been  sacrificed.  Now  there  is  no 
reason  for  a  simple  question  of  technic  to  stand  in  the  way 
of  a  solution.  Technic  is  a  very  interesting  element  of 
juridical  science,  but  it  is  not  the  law. 

There  have  been  violent  and  not  ungrounded  protests 
against  the  tyranny  of  juridical  definitions.  They  have 
been  accused  of  being  an  obstacle  to  the  normal  evolu- 
tion of  the  law.  Theoretically  this  charge  may  be  quite 
well  established.  At  any  rate,  a  young  lawyer  who  had 
consulted  to  advantage  Goblot's  profound  work  has 
given  excellent  arguments  for  banning  descriptive  for- 
mulas from  the  law;  only  indicative  formulas,  which 
have  no  precise  content  and  are  susceptible  of  modifi- 
cation at  any  moment,  ought  to  be  tolerated. 

That  is  going  a  great  deal  too  far.  Purely  indicative 
definitions  serve  no  purpose  in  juridical  discipline.  It 
would  be  a  great  retrogression  in  thought.  Let  us  keep 
what  we  have  of  the  better  and  not  lay  a  boycott  on  it. 


348  RATIONAL  ELEMENT  IN   LAW      [CH.X 

There  is  no  need  to  throw  to  the  dogs  all  that  is  not  fit  for 
the  altar  of  the  gods.  The  earliest  elements  of  juridical 
thought  have  not  the  strictness  necessary  for  admission 
into  pure  logic.  They  have  only  a  rational  value. 

But  what  is  rational?  A  word  as  yet  rather  indefinite, 
to  which  we  hope  to  give  a  meaning  in  the  next  chapter. 

BIBLIOGRAPHY 

GENY,  Science  et  Technique  en  droit  positif  prive  (part  I,  1914, 
part  II,  1915);  Methode  d 'interpretation  (1899,  2d  ed.,  1919); 
WUNDT,  Logik,  chap.  IV,  3;  STAMMLER,  Theorie  der  Rechtwissen- 
schaft  (1911);  WURZEL,  Das  juristische  Denken  (1904);  ELZBACHER, 
Ueber  Rechtsbegriffe;  SALOMON,  Das  Problem  der  Rechtsbegriffe. 

DEMOGUE,  Les  notions  fondamentales  du  droit  prive'  (1911); 
MICESCOU,  Essai  sur  la  technique  juridique  (1911);  CONDOMINE, 
Essai  sur  la  theorie  juridique  et  sa  fonction  (1911);  DJUVARA,  Le 
fondement  du  phenomene  juridique  (1913);  AILLET,  CALDERONI, 
MEYNIAL,  CHARMONT,  MAILLEUX,  WINTER,  various  articles  in  the 
Revue  de  metaphysique  et  de  morale  (1900-1911);  JHERING,  Esprit 
du  Droit  romain  (French  trans,  by  MEULENAERE),  vol.  IV,  chap. 
II,  §  3. 

PILLIUS,  Azo,  DAMASUS,  PETRUS  DE  BELLAPERTICA,  Brocarda; 
BARTHOLOMEUS  SOCINUS,  Regule  cum  suis  ampliationibus  et  fal- 
lentiis  e  toto  jure  delecta  a  Benedicto  Vado  postillate  (1529); 
JAC.  GODFREY,  Florilegium  Sententiarum;  DECIUS,  De  regulis  juris 
(1546);  BARBOSA,  De  axiomatibus  juris  usu  frequenti  oribus  (1676). 

VOLKMAR,  Paroemia  et  regule  juris  Romanorum,  Franco-gallorum, 
Germanorum,  Britannorum  (1854);  A.  LOYSEL,  Regies,  sentences  et 
proverbes  (1607);  LE  Roux  DE  LINCY,  Le  Livre  des  Proverbes 
francais  (1859);  CHAISEMARTIN,  Proverbes  et  Maximes  du  Droit 
germanique  (1891);  GRIMM,  Deutsche  Rechtsalterthumer,  I,  p.  45. 

ED.  GRAFET  and  MATH.  DIETHERR,  Deutsche  Rechtssprich- 
worter;  PERREAU,  Du  role  de  1'habitude  dans  la  formation  du  droit 
prive,  in  Rev.  trim,  de  droit  civil  (1911);  FABREGUETTES,  La  logique 
judiciaire  (1914),  pp.  193-194;  RAFFAELE  CORSO,  Proverbi  giuridici 
Italiani,  in  Archivio  d.  Tradizione  Popolari,  XXIII  (1907);  Kala- 
bresische  Rechtssprichworter. 

LIARD,  Les  definitions  geome'triques  et  empiriques;  H.  RICKERT, 
Die  Lehre  von  der  Definition;  ALCIATUS,  De  verborum  significatione, 
I,  1,  §  9;  CICERO,  Ad.  Herennium,  I,  23;  II,  16,  39;  IV,  35;  De  In- 
ventione,  I,  75;  II,  31;  De  Oratore,  I,  50,  54,  60;  III,  19;  Topica  ad 


§  4  ]  DEFINITION  349 

Trebatium  jurisconsultum,  6,  25,  51;  De  partitione  oratorii,  38,  52; 
LEIBNIZ,  Specimen  difficultatis  in  jure,  in  Revue  critique  (1859); 
HEGENDORFINUS,  Dialectica  legalis;  PIANTL,  Geschichte  der  Logik 
im  Abendlande  (1855-1870). 


CHAPTER  XI 
THE  RATIONAL  ELEMENT   IN   LAW  (continued; 

C,  ANALOGY;  D,  PRINCIPLE;  E,  FICTION 
C.  Analogy 

§  1.  REASONING  BY  ANALOGY:  (I)  ANALOGY  IN  THE  DIFFER- 
ENT SCIENCES;  (II)  COMPARISON  AND  ANALOGY;  (III)  ANALOGY 
PECULIAR  TO  LAW;  (IV)  LOGICAL  VALUE  OF  ANALOGY  IN  LAW. 

D.  ('Construction') 

§2.  JURISTIC  CONSTRUCTION:  (I)  NATURE;  (II)  PRINCIPAL 
FORMS;  (III)  LOGICAL  VALUE;  (IV)  HISTORIC  ROLE  OF  THE  LEGAL 
'CONSTRUCTION.' 

E.  Fiction 

§3.  THE  JURISTIC  FICTION:  (I)  DOGMATIC  FUNCTION;  (II) 
HISTORIC  FUNCTION;  (III)  LOGICAL  VALUE.  — §4.  THE  PROCE- 
DURAL FICTION:  (I)  IN  ORDINARY  PROOF;  (II)  IN  PRESUMPTIONS. 

§5.  CONCLUSION:  ROLE  AND  VALUE  OF  THE  RATIONAL  ELE- 
MENT IN  LAW.- 

C.  Analogy 

§  1.  Reasoning  by  Analogy.  In  the  history  of  concrete 
institutions,  as  in  the  history  of  languages,  analogy  in- 
fluences the  reflective  powers  of  human  beings  without 
appealing  to  them.  Just  as  a  new  word  is  very  often 
fashioned  in  the  image  of  an  old  one,  so  new  institutions 
borrow  the  forms  of  old  ones  even  when  they  present 
themselves  as  their  antagonists.  This  development  of 
concrete  and  practical  juridical  creations  through  the 
process  of  imitation  will  be  studied  later.  Here  we  shall 
examine  the  action  of  conscious,  rational  analogy  upon  the 
science  and  the  logic  of  the  law:  i.e.,  reasoning  by  analogy. 

350 


§  1  ]  ANALOGY  351 

In  legislation  as  well  as  in  jurisprudence  and  doctrinal 
matters,  the  relations  of  resemblance  which  may  exist 
between  legal  conceptions  or  situations  have  always  been 
knowingly  utilized  for  the  purpose  of  obtaining  the  solu- 
tion of  new  cases  and  of  thus  enlarging  the  domain  of 
juridical  influence.  Reasoning  by  analogy  is  almost  con- 
tinually employed  in  our  science.  It  is  important,  there- 
fore, to  understand  its  nature  and  its  value. 

Philosophical  logicians  do  not  agree  perfectly  upon  this 
point.  But  their  point  of  view  is  not  quite  identical 
with  ours,  since  they  ask  what  analogy  is  in  itself,  from  the 
abstract  and  theoretical  point  of  view,  while  we  have  to 
study  it  as  it  presents  itself  practically  in  every-day  con- 
siderations and  discussions,  more  particularly  in  juridical 
life.  It  is  necessary,  however,  for  these  two  studies  to  be 
mutually  based  upon  one  another. 

I:  Analogy  in  the  Different  Sciences.  In  mathematics, 
analogy  is  perfect  reasoning.  Thus,  in  geometry  any 
figure  may  be  of  service  in  making  calculations  concerning 
another  figure  which  resembles  it;  being  given  a  triangle 
all  of  whose  various  elements  are  known  and  another 
triangle  which  resembles  it  but  certain  of  whose  elements 
are  not  known,  one  may  calculate  with  certainty  the  un- 
known elements  by  the  fact  of  the  similarity  of  the  two 
figures.  We  are  told  that  in  any  triangle  whatsoever,  a 
small  triangle  similar  to  it  may  be  constructed  by  drawing 
a  line  parallel  to  one  of  the  sides.  By  virtue  of  this 
principle,  if  we  know  the  dimensions  of  the  large  triangle 
and  a  single  point  concerning  the  small  one,  or  the  di- 
mensions of  the  small  triangle  and  a  single  point  concerning 
the  large  one,  it  will  be  sufficient  for  complete  and  certain 
information  in  regard  to  both;  whereas  if  the  two  figures 
were  not  similar,  the  knowledge  of  the  one  would  be  of 
no  use  in  a  computation  of  the  other.  Accordingly,  in 
mathematics,  analogy  —  the  computation  of  a  like  by 
means  of  a  like  —  is  a  process  as  fruitful  as  it  is  certain. 


352  THE  RATIONAL  IN   LAW  [CH.XI 

This  is  not  the  case  in  the  logic  of  the  concrete  sciences. 
There  analogy  leads  to  probability,  but  never  to  certainty. 
Moreover,  the  reason  of  this  is  very  simple;  a  mathe- 
matical resemblance  is  something  other  than  a  common 
resemblance.  The  elements  of  the  two  similar  figures  are 
entirely  different,  but  they  are  all  in  the  same  proportion. 
There  is  nowhere  absolute  identity,  but  everywhere 
identity  of  relation. 

In  the  concrete  sciences  and  in  ordinary  logic,  we  call 
"likes,"  objects  or  phenomena  which  have  common  ele- 
ments and  elements  which  are  different,  that  is  to  say,  be- 
tween which  no  relationship  exists.  There  different  ele- 
ments may  be  very  numerous  or  very  few;  but  here 
where  there  is  no  correspondence  or  relation,  no  calcu- 
lation is  possible.  A  problem  thus  stated  recalls  the  one 
wherein  the  age  of  the  captain  is  calculated  according  to 
the  dimensions  of  his  ship;  and  a  mathematician  would 
refuse  to  trouble  himself  over  it.  But  in  practical  life  we 
are  satisfied  with  solving  insoluble  problems  with  the  data 
at  our  disposal.  We  solve  them  but  roughly,  and  with 
little  profit.  Nevertheless,  the  solutions  are  not  absolutely 
arbitrary,  and  circumstances  quite  foreign  to  the  calcu- 
lation itself  may  confirm  them  in  a  manner  which  will 
make  them  almost  a  certainty.  Thus  the  natural  sciences 
avail  themselves  of  analogy  in  order  to  establish  hypoth- 
eses which  will  be  submitted  to  the  control  of  experience. 
However  unlike  two  contagious  diseases  may  be,  they  have 
the  common  characteristic  of  being  contagious.  It  is 
known  that  one  of  them  is  due  to  a  microbe;  from  this  it 
is  concluded  that  the  other  also  must  be  caused  by  a 
microbe.  This  is  not  certain;  analogy  has  furnished  only 
a  probability,  but  this  probability  will  direct  the  research. 
Certainty  will  be  gained  only  at  the  moment  the  second 
microbe  is  disclosed. 

Moral  disciplines  are  deprived  —  or  nearly  so  —  of  veri- 
fication by  experience.  When  they  employ  analogy,  it  is 


§  1  i  ANALOGY  353 

without  any  especial  hope  of  being  able  to  attain  certainty 
by  any  course  whatsoever.  They  are  only  more  ingenious 
in  looking  for  the  very  strongest  degree  of  possible  prob- 
ability. Although  its  results  are  always  vague  and  in- 
determinate, juridical  analogy  none  the  less  puts  forth  a 
great  deal  of  intellectual  effort  in  trying  to  make  the  best 
use  of  the  feeble  resources  at  its  disposition. 

II:  Analogy  Based  on  Comparison  and  Analogy  Based 
on  Analysis.  An  ordinary  likeness  does  not  in  itself  au- 
thorize any  logical  conclusion.  From  the  fact  that  certain 
objects  or  phenomena  have  certain  characteristics  in  com- 
mon, it  is  impossible  to  conclude  whether  the  unknown 
characteristics  will  be  alike  or  different.  Accordingly,  no 
comparison  between  the  objects  or  phenomena  is  justified. 

Two  persons  have  each  killed  a  man  by  stabbing  him 
with  a  knife;  what  will  be  the  fate  of  the  homicides?  The 
similarity  between  the  material  acts  does  not  allow  one 
to  say.  The  circumstances  which  are  unknown  to  us  may 
be  so  entirely  different  that  one  of  the  killers  will  die 
by  the  more  extreme  punishment,  while  the  other  will  be 
absolved  or  justified  without  prosecution.  An  instance  of 
the  last  would  be  the  killing  of  a  slave  by  his  master  in  a 
primitive  stage  of  civilization.  In  an  advanced  stage  of 
civilization,  the  absence  of  intention,  or  a  lawful  excuse, 
can  absolve  the  homicide.  Therefore,  the  partial  re- 
semblance of  the  two  acts  can  furnish  us  with  no  solution. 
In  order  that  juridical  analogy  may  be  able  to  perform  its 
function,  something  more  than  the  establishment  of  an 
ordinary  resemblance  is  necessary.  According  to  natural 
tendencies  and  education,  different  minds  will  not  pursue 
the  same  methods  in  seeking  that  "something  more" 
which  is  necessary  to  establish  reasoning  by  analogy. 
Primitive  logic  employs  especially  the  analogy  of  compar- 
ison, and  scholarly  logic,  the  analogy  of  analysis. 

(1)  From  the  single  fact  that  two  phenomena  are  different 
in  certain  aspects  and  similar  in  others,  no  conclusion  can 


354  THE  RATIONAL  IN  LAW          (  CH.  XI 

be  drawn.  But  if  the  phenomena  are  identical,  every- 
thing which  is  true  of  one  will  be  true  of  the  other;  and  if 
they  are  almost  identical,  the  same  similarity  will  be  almost 
exact.  The  resemblance  then  becomes  an  approximate 
identity.  Those  who,  by  means  of  analogy,  wish  to  apply 
to  one  juridical  fact  the  characteristics  of  another  juridical 
fact  attempt  to  prove  that  the  number  of  characteristics 
which  the  two  have  in  common  is  very  considerable  and 
that  the  number  of  points  in  which  they  differ  is  insignifi- 
cant, and  that,  accordingly,  it  is  right  to  treat  them  as 
identical.  Those  who  are  opposed  to  comparison  will  in- 
sist upon  the  differences  and  try  to  conceal  the  points  of 
resemblance.  These  processes  of  argumentation  and 
counter-argumentation  are  very  much  used  in  practical, 
iii  political,  and  sometimes  even  in  juridical  life.  They 
are  characterized  by  these*  two  phrases  which  are  com- 
monplace enough  but  of  great  effect  upon  the  public 
mind:  "It  is  the  same  thing,"  "It  is  not  the  same 
thing." 

Very  often,  when  we  blame  an  act  committed  by  an- 
other, some  one  objects  that  on  another  occasion  we 
ourselves  have  done  quite  the  same  thing.  "It  is  not 
the  same  thing,"  we  cry  out  eagerly,  and  there  ensues  a 
struggle  between  the  course  of  reasoning  of  our  opponent 
based  on  analogy  and  our  own  which  is  the  reverse.  It 
is  certain  that  the  two  acts  could  never  be  absolutely  "the 
same  thing,"  and  from  the  fact  that  they  are  not  identical, 
we  conclude  that  they  are  not  analogous.  Accordingly, 
we  praise  one  and  blame  the  other,  when,  if  we  were  more 
strictly  logical,  we  should  praise  or  blame  both.  This 
situation  is  such  a  common  one  in  the  course  of  our  ex- 
istence that  the  least  disagreement  affords  numerous  ex- 
amples of  it.  Especially  do  we  use  and  abuse  in  a  most 
outrageous  fashion  the  very  imperfect  anti-analogical  ar- 
gument; and  it  is  a  curious  fact  that  this  inferior  logical 
process,  so  common  in  social  life,  has  scarcely  yet  been 


§  1  ]  ANALOGY  355 

noticed.  Besides  it  must  be  admitted  that  skilful  jurists 
and  even  philosophers  do  not  always  abstain  from  using  it. 

As  regards  analogy  based  upon  similarity,  although  it  is 
often  badly  conducted,  it  may  likewise  be  employed  with 
wisdom  and  discretion;  in  which  case  its  use  is  perfectly 
justified.  From  the  fact  that  the  points  of  resemblance 
between  two  objects  are  very  numerous  and  the  points 
of  difference  very  few,  it  may  be  quite  legitimate  to  con- 
clude that  any  special  quality  which  is  established  as  be- 
longing to  one  stands  a  good  chance  of  being  met  with  in 
the  other.  This  course  of  reasoning  may  be  related  to 
induction,  and  such  the  majority  of  logicians  consider  it. 
Its  mechanism  would  be  nearly  the  same,  although  its 
results  would  always  remain  less  clear  and  definite. 
Many  logicians  recognize  only  the  analogy  of  similarity. 
It  is  to  this  alone  that  the  following  phrase  from  Jevons 
refers:  "The  certainty  of  the  process  depends  entirely 
upon  the  degree  of  resemblance  or  identity  between  the 
cases." 

(2)  Nevertheless,  it  is  certain  that  the  analogy  which 
is  based  on  analysis  is  of  much  higher  value  as  a  logical 
process.  Without  doubt  it  is  more  difficult  to  handle,  but 
it  goes  to  the  bottom  of  things  and  is  its  own  justification. 
Being  given  two  like  objects,  each  must  be  separated  into 
its  elements.  We  then  distinguish  the  elements  common 
to  both  and  those  which  are  individual  to  each.  Every- 
thing which  depends  upon  the  common  elements  is  com- 
mon to  the  two  objects;  everything  which  depends  upon 
the  individual  elements  should  remain  individual.  This 
operation  has  the  appearance  of  being  very  simple  and 
many  persons  will  aver  that  it  goes  without  saying  and 
that  they  never  reason  in  any  other  way.  Such  state- 
ments are  made  by  the  most  simple-minded  persons,  those 
who  are  most  often  deceived  in  this  respect.  As  a  matter 
of  fact,  it  is  an  easier  matter  to  explain  this  form  of  analogy 
than  to  practice  it  seriously.  Likewise,  it  will  not  be 


356  THE   RATIONAL  IN  LAW          [  CH.  XI 

without  value  to  give  examples  of  it  and  to  examine  their 
foundation. 

Analytical  analogy  is  concerned  very  little  with  the 
quantity  of  the  similar  traits,  it  takes  note  of  their  quality, 
of  their  agreement  with  that  element  which  is  the  criterion 
of  acceptance  or  rejection.  Take  for  instance  two  dis- 
eases the  symptoms  and  manifestations  of  which  are  en- 
tirely different,  and  which  have  but  a  single  trait  in  com- 
mon, that  of  being  equally  contagious.  We  know  that 
one  of  these  is  caused  by  a  microbe;  from  this  we  will  con- 
clude that  in  all  probability  the  second  has  its  origin  also 
in  a  microbe,  because  there  is  a  relationship  between 
microbes  and  contagion.  One  explains  the  other;  and 
this  single  common  characteristic  renders  the  analogy 
much  more  probable  than  do  much  more  numerous  points 
of  resemblance  whose  relationship  with  the  fact  to  be 
compared  can  not  be  grasped,  as  in  the  case  of  two  ex- 
tremely similar  diseases,  one  of  which  is  contagious  and 
the  other  not. 

Take  an  example  from  law.  Two  murders  have  been 
committed;  the  first  with  intention,  premeditation  and 
with  no  excuse.  The  guilty  party  has  been  condemned  to 
death  and  to  pay  damages  to  the  relatives  of  the  victim. 
The  second  homicide  resulted  from  a  single  act  of  careless- 
ness; the  harm  done,  however,  is  identical.  In  reasoning 
from  analytical  analogy,  how  are  we  going  to  judge  this 
second  case?  There  are  in  the  two  cases  identical  and 
different  elements.  The  injury  done  by  the  crime  is  the 
same.  Now  in  our  legal  system  the  injury  done  by  the 
crime  entails  reparation;  therefore  the  second  will  be 
sued  for  damages  equally  with  the  first.  But  the  blame  is 
not  the  same,  and  as  the  penalty  is  apportioned  to  the 
degree  of  culpability,  there  will  be  little  or  no  penalty. 

In  these  cases,  analogy  conforms  to  Cournot's  definition: 
"A  mental  process  which  rises  above  the  observation  of 
relationships,  to  the  reason  of  these  relationships."  In 


§  1  ]  ANALOGY  357 

the  language  of  the  law  we  say:  "Where  there  is  the  same 
reason  of  the  law,  there  is  the  same  disposition  of  the  law." 
"Ubi  eadem  est  legis  ratio,  eadem  est  legis  dispositio." 

Since  law  is  an  essentially  analytical  discipline,  it  ought 
soon  to  understand  and  practice  analytical  analogy.  One 
ought  to  be  fair  and  recognize  that  no  other  science  has 
devoted  such  great  efforts  to  attain  this  end.  Ever  since 
there  has  been  a  juridical  logic,  every  legal  practitioner 
who  has  pointed  out  the  points  of  difference  and  resem- 
blance in  laws  has  done  his  utmost  to  arrive  at  the  reason 
of  these  points  of  difference  and  resemblance  ("ratio  simili- 
tudinis  et  differentiae").  In  periods  of  great  legal  recon- 
struction —  there  are  no  great  hopes  without  a  little 
naivete  —  it  has  seemed  quite  easy  to  try  to  prevent 
the  use  of  argument  from  analogy  except  in  its  most  im- 
posing logical  form.  Thus  Portalis  proposed  to  inscribe 
in  the  introduction  to  the  Civil  Code:  "One  ought  not  to 
decide  one  case  by  another  except  when  there  is  the  same 
ground  of  decision." 

There  is  no  doubt  but  that  if  the  thing  had  been  pos- 
sible it  would  have  been  realized  centuries  and  centuries 
ago.  Moreover,  his  expression,  "the  same  ground  of  de- 
cision," is  extremely  vague  and  can  be  of  no  service. 
For  whoever  reasons  by  analogy,  even  the  vaguest  anal- 
ogy, thinks  that  there  is  the  "same  ground  of  decision." 
And,  however  poor  it  is,  his  formula  is  not  worse  than 
any  other,  for  the  difficulty  is  in  the  substance  and  not  in 
the  form. 

Laws  have  not  simply  a  single  "raison  d'etre."  Their 
various ' '  raisons  d  'etre ' '  are  not  always  known  to  us .  It  may 
even  be  said  that  they  are  very  seldom  known  exactly  and 
beyond  discussion.  The  motives  which  have  guided  the 
lawmaker  may  be  entirely  unknown  to  us ;  and  it  may  very 
often  be  necessary  to  seek  for  them  in  the  far  distant  past. 
If  it  is  a  question  of  disentangling  the  actual  part  played 
by  a  juridical  disposition  and  its  rational  utility,  the  opera- 


358  THE  RATIONAL  IN   LAW  [CH.XI 

tion  will  be  still  more  difficult  and  the  result  still  more 
uncertain.  The  task  set  before  legal  logic  is  to  clarify 
discussions,  and  to  discover  processes  of  simplifications 
which  are  within  the  reach  of  all.  This  is  how  it  has  come 
about  that  while  the  great  value  of  reasoning  by  analytical 
analogy  has  been  fully  recognized  and  its  place  preserved 
whenever  it  was  possible  to  do  so  without  too  great  diffi- 
culty, Law  has  had  to  invent  its  own  forms  of  analogy, 
employed  at  every  period  along  with  the  forms  common  to 
all  disciplines  that  we  have  just  explained. 

Ill:  Analogies  peculiar  to  Legal  Reasoning.  Analogy 
based  on  similarity  is  a  little  too  simple  to  be  openly  ac- 
knowledged in  even  a  low  grade  of  legal  atmosphere,  and 
analytical  analogy  is  a  little  too  learned  to  be  practiced 
with  certainty  in  a  legal  atmosphere  of  high  grade. 

The  law  needs  a  simple  and  rapid  method  of  reasoning, 
which,  although  set  high  above  all,  is  within  the  reach 
of  all. 

It  needs  very  general  principles  which  cannot  be  sub- 
jected to  dispute  with  each  separate  case.  These  the 
philosophic  logic  of  analogy  does  not  offer .  Law  has ,  there- 
fore, created  them  for  itself.  It  has  created  a  large 
number  of  such  principles,  the  two  most  important  ones 
of  which  we  shall  study. 

1.  First  Principle.     Every  approved  rule  should  be 
expanded  through  analogy;  every  vicious  rule  should  be 
narrowly  interpreted.     "Favores  sunt  ampliandi,  odiosa 
vero  sunt  restringenda." 

2.  Second  Principle.    Every  rule  which  conforms  to  the 
body  of  common  law  should  be  extended  by  analogy; 
every  rule  which  is  opposed  to  common  law  should  be 
narrowly  interpreted. 

The  first  of  these  two  formulas  is,  it  may  be  said,  of 
the  moral  order,  the  second  of  the  constructive  order. 

(1)  Difference  in  Logical  Structure.  What  then  is  an 
approved  rule,  and  what  a  vicious  rule? 


§  1  ]  ANALOGY  359 

Every  command  or  institution  which  is  useful  and  in 
conformity  with  morality  or  justice  is  certainly  a  favored 
rule,  e.g.,  marriage  and  property.  A  law  is  vicious  when 
it  is  useful,  but  contrary  to  morality  and  justice,  e.g., 
slavery  in  ancient  times.  There  are,  however,  between 
these  fixed  extremes,  intermediate  and  doubtful  cases: 
useful  laws  which  are  in  conformity  with  morality  but 
contrary  to  justice ;  useful  laws  in  conformity  with  justice 
but  contrary  to  morality;  harmful  laws  admitted  never- 
theless out  of  respect  for  justice  and  morality.  Due  to 
their  inability  to  make  a  sufficiently  exhaustive  analysis, 
theorists  who  distinguish  between  vicious  and  approved 
rules  neglect  to  pronounce  upon  such  cases.  This  in 
itself  condemns  their  teaching  as  inaccurate,  and  inac- 
curacy should  be  fatal  to  it. 

Reasoning  by  analogy  upon  common  law  does  not  per- 
mit the  same  faults  of  logical  deduction.  Since  it  is  itself 
an  artificial  and  abstract  work,  that  would  be  inexcusable. 
The  principle  of  common  law  is  one  which  admits  of  an 
indefinite  extension  of  power.  Normally  it  plays  the  part 
of  the  major  premise  in  a  syllogism.  Analogy  drawn  from 
dispositions  of  common  law  may  be  compared  to  induction 
followed  by  deduction.  Thus  we  see  that  according  to  a 
certain  legal  system  citizens  may  buy,  sell,  borrow  and  form 
partnerships  according  to  their  intention,  choosing  the 
obligations  to  which  they  wish  to  submit.  From  this  we 
conclude  that  liberty  in  buying  and  selling  is  in  conformity 
with  common  law.  We  thus  lay  down  the  general  prin- 
ciple of  freedom  of  contract,  which  we  can  apply  in  a 
given  case  to  each  new  hypothesis.  The  principle  of 
strict  law  has  no  life  of  its  own,  nor  any  personal  inde- 
pendence. It  can  be  expressed  completely  only  in  con- 
nection with  the  general  principle  which  it  restricts. 
Otherwise  it  is  incomplete.  So  we  have  sometimes 
wished  that  it  were  compulsory  for  every  derogation  from  a 
principle  of  common  law  to  be  accompanied  by  the  prin- 


360  THE  RATIONAL  IN  LAW          [CH.XI 

ciple  to  which  it  is  derogatory.  The  scope  of  the  exception 
is  beyond  the  comprehension  of  one  who  is  ignorant  of 
the  rule. 

What  is  a  derogation  from  a  very  broad  principle  may 
become  common  law  as  related  to  a  more  restricted  dis- 
position. "Every  agreement  contrary  to  good  morals  is 
null  and  void."  As  related  to  the  liberty  of  agreements, 
the  principle  is  strict  law;  as  related  to  each  type  of 
immoral  act,  it  constitutes  the  rule  and  may  be  extended 
by  analogy.  Thus,  nearly  every  juridical  disposition  may 
be  considered  as  strict  law  in  relation  to  a  broader  prin- 
ciple of  which  it  is  a  species,  and  as  common  law  in  relation 
to  narrower  dispositions  for  which  it  constitutes  the  genus. 

(2)  Historical  Independence  of  the  Two  Forms  of  Analogy. 
Thus  analogy  from  common  law  and  that  from  approved 
rule  have  a  very  different  logical  structure.  One  may  per- 
haps suppose  that  if  they  differ  as  to  form,  they  are  similar 
as  to  substance.  For,  it  might  be  said,  the  principles  to 
which  the  Law  accords  the  greatest  liberty  of  extension 
are  precisely  those  which  are  recognized  as  possessing  the 
greatest  social  and  moral  value.  If  this  may  be  true  in 
some  cases,  it  is  certainly  not  always  so.  The  field  of  ap- 
plication of  a  principle  is  primarily  a  question  of 
technic,  and  the  broadest  field  is  not  always  the  most 
valuable.  Moreover,  it  might  be  argued  inversely  that 
the  exception  is  more  valuable  in  the  eyes  of  the  lawmaker 
than  the  rule,  since  he  has  set  it  apart  and  given  it  a 
privileged  position.  This  objection  was  not  lacking  in 
embarrassment  to  the  dialecticians  of  the  Middle  Ages 
when  they  were  attempting  to  establish  the  respective 
relations  of  privilege,  of  approved  rule,  and  of  common  law. 

In  fact,  if  one  studies  at  close  range  the  juridical  knowl- 
edge of  a  period  or  of  a  series  of  periods,  one  cannot  doubt 
that  the  two  forms  of  analogy  are  independent.  They 
are  seen  living  side  by  side,  sometimes  in  such  harmony 
that  it  is  difficult  to  determine  their  respective  domains, 


§  1  ]  ANALOGY  361 

sometimes  in  hostility  and  rivalry,  with  one  trying  to 
drive  out  the  other. 

(3)  Analogy  in  Roman  Law.  Roman  law  recognizes 
the  "jus  singulare,"  which  undoubtedly  should  be  opposed 
to  the  "jus  generale,"  and  the  texts  tell  us  that  this  "jus 
singulare,  non  est  producendum  ad  consequentiam,"  ought 
not  to  be  extended  by  analogy.  This  is  what  ought  to  be 
restricted,  of  course,  provided  there  be  not  some  other 
reason  for  extension,  just  as  general  or  common  law  ought 
normally  to  be  extended  provided  there  be  not  some  other 
reason  for  restriction. 

These  other  reasons  for  extension  and  for  restriction  of 
laws  must  be  traced  back  to  two  different  orders  of 
ideas.  The  Roman  jurists  note  a  certain  number  of  ju- 
ridical situations  which  should  be  treated  with  laxity, 
and  others  which  must  be  severely  dealt  with.  Every- 
thing which  facilitates  marriage,  enfranchisement,  and  the 
right  of  succession  should  be  interpreted  in  the  most 
liberal  spirit;  it  is  quite  the  contrary  as  regards  institu- 
tions which  we  tolerate  but  do  not  esteem:  these  will  be 
interpreted  strictly.  The  most  typical  of  this  latter  cate- 
gory is  disinheritance.  The  text  which  best  contrasts 
this  popularity  and  unpopularity  of  institutions  of  equal 
authority  is  this  from  the  Digest:  "Scaevola  responded 
that  there  was  another  cause  of  the  institution  which  was 
received  favorably  (benigne) :  acts  of  disinheritance  ought 
not  to  be  given  assistance."  Thus  the  institution  of  in- 
heritance should  be  examined  benigne;  disinheritance 
should  find  in  the  magistrate  and  the  judge  severe  critics 
ready  to  annul  it  if  it  is  not  absolutely  irreproachable  as 
to  form  and  substance. 

There  is  therefore  a  certain  inequality  between  the  va- 
rious elements  of  positive  Roman  law,  an  inequality  which 
is  admitted  by  jurists  themselves.  A  certain  text  is  sym- 
pathetic, a  certain  other  antipathetic,  and  they  are  not 
interpreted  in  the  same  way.  But  Roman  jurists  did  not 


362  THE  RATIONAL  IN  LAW  [Cn.XI 

say  that  they  had  favored  rules,  and  still  less,  vicious 
ones.  In  Latin,  as  in  French,  the  expression  is  rather 
strong.  A  law  may  be  vicious  for  those  who  condemn  it 
and  wish  to  see  it  wiped  out.  But  to  apply  the  term 
"vicious"  to  juridical  dispositions  of  recognized  legiti- 
macy and  utility  is  certainly  an  exaggeration,  even  though 
these  dispositions  might  present  some  inconveniences. 

As  far  as  I  know,  the  word  "vicious"  was  never  used 
by  Roman  jurists  to  valuate  laws.  But  between  Roman 
law  and  the  Romanists  of  the  Middle  Ages  there  arose  a 
misunderstanding  which  seemed  trifling  enough  but  which 
exercised,  nevertheless,  a  rather  important  influence  upon 
the  history  of  juridical  logic;  it  was  this: 

Along  with  the  distinction  between  sympathetic  and 
antipathetic  laws,  Roman  law  had  another  category: 
rules  made  ' '  in  odio ' '  and  those  made  ' '  in  favore. ' '  Those 
made  "in  odio"  are  those  made  through  hatred  and  with 
repugnance  towards  certain  persons.  Laws  intended 
to  control  any  specified  class  which  is  in  disrepute  among 
the  populace  generally,  such  as  usurers,  actors,  camp-fol- 
lowers of  the  army,  swindlers,  etc.,  are  made  in  hatred  of 
these  personages  —  "in  odio  usurarium,"  etc.  It  is 
not  that  the  law  itself  is  odious;  far  from  it;  its  disap- 
probation was  merited.  But  in  the  path  of  hatred  and  re- 
pression, Roman  science  wished  to  make  it  impossible  to 
go  beyond  the  line  laid  down  by  the  lawmaker.  Hence, 
for  such  rules,  interpretation  is  in  principle  restrictive. 

Reasoning  by  analogy  in  the  Roman  law  embraced 
therefore  three  divisions: 

/Common  Law:  extensive; 
\"Jus  Singulare":  restrictive. 

f Sympathetic  Institutions:  extensive; 
\Antipathetic  Institutions:  restrictive. 

(Laws  made  to  favor  esteemed  persons:  extensive; 
\Lawsmadeagainst  personsheld  in  disrepute:  restrictive. 


§  1  ]  ANALOGY  363 

The  classic  example  of  the  contrast  indicated  in  the 
last  division  is  furnished  by  the  Velleian  and  the  Mace- 
donian Senate  decrees.  The  first  was  established  "favore 
mulierum"  and  the  second,  "ob  poenam  creditorum."  x 

The  Romanists  of  the  Middle  Ages  made  the  mistake, 
rather  a  surprising  one  for  analysts  of  their  strength,  of 
ignoring  this  threefold  division  and  of  reducing  it  to 
a  twofold  one  by  merging  the  two  last  categories  into  a 
single  one.  Through  this  mistake  they  were  led  to  valuate 
certain  rules  as  " favored"  or  "vicious,"  —  a  conception 
which  was  entirely  contrary  to  that  of  the  Roman  jurists. 

It  is  evident  that  the  triple  division  of  the  processes  of 
argumentation  based  on  analogy  is  the  only  exact  one; 
and  if  this  were  a  treatise  upon  juridical  logic,  that  would 
be  the  division  necessarily  adopted;  but  in  a  historical 
survey  as  rapid  as  this,  the  third  category  may  be  neg- 
lected, once  its  existence  has  been  pointed  out. 

(4)  Varying  Prestige  of  the  Two  Forms.  Therefore  in  all 
our  ancient  law  —  in  France  up  to  the  Civil  Code  —  anal- 
ogy through  common  and  special  law  and  analogy  through 
favored  and  vicious  rules  are  equally  employed.  Never- 
theless it  might  perhaps  be  affirmed  that  the  first  method 
predominated  down  to  the  twelfth  and  thirteenth  cen- 
turies and  that  in  the  following  centuries  there  was  an 
exaggerated  tendency  to  reason  in  terms  of  "favorabilia 
et  odiosa." 

Grotius  employed  the  last  method  of  interpretation,  but 
Heineccius  and  Thomasius  warred  against  it,  the  latter 
condemning  it  most  unmercifully.  Its  prestige  died  out 
in  the  course  of  the  eighteenth  century.  Portalis  did 
nothing  more  than  express  the  general  opinion  when  he 
ordered  the  following  to  be  inscribed  under  the  prelimi- 
nary heading  of  the  Civil  Code: 

"The  distinction  between  favored  and  vicious  rules 

'[The  Velleian  Decree  allowed  a  married  woman  to  bind  her  property  by  con- 
tracts, except  as  surety.  The  Macedonian  Decree  allowed  the  son  to  bind  himself 
by  contract  of  surety  but  not  by  debt  for  a  money  loan.  —  ED.) 


364  THE  RATIONAL  IN   LAW  [CH.XI 

made  with  a  view  to  extending  or  restricting  their  dispo- 
sition is  open  to  misuse."  Commentators  on  the  Civil 
Code  allow  a  large  place  for  analogy  through  common 
law.  It  is  one  of  the  most  important  and  incontestable 
principles  of  their  argumentation.  Analogy  through  fa- 
vored rule  is  not  openly  avowed,  although  perhaps  it  is 
clandestinely  practiced.  In  theory,  it  is  not  taken  into 
account  in  classical  juridical  logic.  For  example,  the  be- 
queathal  of  property  to  be  left  at  one's  death,  authorized 
through  marriage-contract  to  be  in  favor  of  future  wives 
or  husbands  and  their  children,  is  a  favored  measure  but 
a  bold  derogation  of  common  law.  Its  first  character  is 
not  taken  into  account ;  it  is  interpreted  as  strictly  as  pos- 
sible by  excluding  combinations  which  have  exactly  the 
same  right  in  the  law  as  those  expressly  admitted  by  the 
text. 

The  new  schools  which  make  such  lively  attacks  upon 
the  constructive  logic  of  the  classical  school  ought  not  to 
spare  the  kind  of  analogy  which  is  there  practiced.  One 
might  expose  a  tendency  among  certain  recent  authors  to 
resuscitate  analogy  of  favored  rule  under  a  new  and  per- 
haps improved  form. 

IV:  The  Nature  of  Reasoning  by  Analogy  and  its  Log- 
ical Value  in  Juridical  Science.  If,  therefore,  it  is  per- 
fectly reasonable  to  apply  similar  juridical  dispositions  to 
similar  cases,  it  is  seen  to  be  a  difficult  matter  in  practice, 
since,  in  order  to  discover  the  resemblance  and  put  it 
clearly  before  the  eyes  of  all,  a  series  of  processes  must  be 
resorted  to  which  are  of  very  unequal  value  and  but 
slightly  in  accord  with  one  another. 

Our  aim  is  to  disclose  the  intellectual  forces  which  have 
been  at  work  in  the  development  of  the  law  and  to  esti- 
mate their  value.  The  conclusions  at  which  we  have  ar- 
rived appear  practically  incontestable. 

(a)  Analogy  has  played  an  important  part  in  the  fram- 
ing and  interpretation  of  laws.  The  ordinary  and  learned 


§  2  ]  THE  CONSTRUCTION  365 

forms  of  this  method  of  reasoning  as  they  appear  in  the 
concrete  sciences  being  insufficient  for  the  demands  of 
juridical  science,  it  was  found  necessary  to  invent  special 
forms  which  were  more  easily  handled  but  more  artificial. 
Analogy  has,  moreover,  cumulated  juridical  forms  upon 
those  of  general  logic. 

(b)  Since  analogy  furnishes  only  approximate  results 
in  the  concrete  sciences,  it  is  very  certain  that  it  can 
make  no  pretence  of  greater  accuracy  in  the  Law.     In  re- 
vealing resemblances  it  proceeds  in  different  directions 
according  as  it  adopts  the  form  based  on  similarity  or  that 
on  analysis,   that  of  common   law   or   that  of  favored 
rule.     It  is,  therefore,  an  incontestable  fact  that  its  pro- 
cedure is  artificial  if  not  absolutely  arbitrary. 

(c)  Analogy  is  in  itself  a  purely  rational  mental  opera- 
tion.    It  functions  normally  without  making  any  appeal  to 
collective  or  individual  morality  or  sentiment.     Even  the 
category  of  "favore  et  odio"  is  a  creation  of  the  intellect 
rather  than  of  sentiment.    Let  it  be  understood,  however, 
that  this  is  not  saying  that  sentiment  or  emotion  cannot 
employ  this  form  of  logic  or  any  other  and  direct  it  along 
a  special  line.    But  normally  and  in  itself  analogy  is  an 
act  of  the  intelligence.     It  is  an  incontestable  fact  that  its 
character  is  rational  but  of  no  absolutely  logical  value. 

D.  Construction 

§  2.  Juridical  Construction.1  The  study  of  juridical 
construction  —  its  definition  and  field  of  influence,  the 

1  [For  the  word  "  construction  "  there  is  no  exact  equivalent  in  modern  Anglo- 
American  legal  terminology.  It  is  an  established  technical  term  of  common  usage 
in  French  and  German  writings;  and  at  one  time  (when  English  lawyers  were  more 
in  touch  with  Continental  legal  thought)  it  was  in  use  in  English  law-books;  e.g., 
"Law  Constructions,"  the  title  of  a  chapter  in  Noy's  "  Maxims,"  ed.  1042. 

It  is  nearest  translated  by  "generality."  and  signifies  an  abstract  principle 
formed  by  generalizing  from  several  concrete  rules,  and  serving  to  harmonize 
them  and  to  supply  a  common  basis  for  them.  "Construction"  emphasizes  the 
process,  "generality,"  the  result. 

In  Continental  usage  it  is  of  course  most  common  as  a  generality  serving  to 
support  several  specific  texts  in  different  parts  of  a  code.  But  it  applies  equally 


366  THE  RATIONAL  IN  LAW          [CH.XI 

part  which  it  behooves  us  logically  to  attribute  to  it  in 
the  formation  of  the  Law,  its  actual  activity  as  much 
from  the  present-day  as  from  the  historical  point  of  view, 
—  this  study,  I  say,  has  been  greatly  neglected  by  legal 
philosophy  and  pure  juridical  science.  It  seems  that  in- 
stead of  trying  to  seize  the  bull  by  the  horns,  there  has 
rather  been  a  game  of  dodging  it.  How  many  volumes 
have  been  devoted  to  erecting  juridical  constructions! 
How  many  jurists  have  passed  their  lives  at  it  without 
even  a  vague  explanation  of  the  "reason  d'etre"  of  their 
toil!  Have  they  known  exactly  what  they  were  writing 
about  and  why? 

It  is  the  fate  of  many  abstract  problems  never  to  find 
any  final  solution.  Still  it  is  proper  to  propound  them 
and  to  accord  them  the  attention  they  deserve.  It  can- 
not be  disputed  that  the  problem  of  the  "raisons  d'etre  "  of 
juridical  constructions  must  dominate  the  study  of  the 
constructions  themselves.  No  more  can  it  be  disputed 
that  this  problem  has  very  rarely  been  approached  with 
frankness  and  that  many  have  rather  spoken  of  it  inci- 
dentally, as  .of  a  thing  understood  instead  of  the  princi- 
pal question  important  in  itself  and  difficult  to  solve. 

The  reasons  for  this  tremendous  lack  in  juridical  logic 
are  numerous.  They  are  of  such  a  nature  as  to  absolve, 
in  a  large  measure,  the  jurists  from  the  reproach  of  intel- 
lectual sloth  with  which  one  might  be  inclined  to  charge 
them  in  this  matter. 

Moreover,  it  is  fitting  that  there  should  be  no  exagger- 
ation. If  the  very  large  majority  of  those  who  establish 
or  employ  juridical  constructions  are  ignorant  of  their 
nature  and  scope,  a  great  many  others  have  fashioned  for 

when  used  to  harmonize  rules  laid  down  by  judicial  decision.  The  Anglo-American 
restriction  of  usage  for  "construction"  to  the  harmonizing  of  clauses  in  a  single 
document  is  merely  a  narrow  use  of  this  broad  term. 

The  word  "construction"  has  here  been  preserved  literally,  because  we  need  the 
word  to  fill  a  vacant  place  in  our  legal  language,  and  because  it  was  thought  unde- 
sirable to  risk  a  misunderstanding  of  the  author's  thought  by  using  any  other 
word.  —  ED.] 


§2]  THE  CONSTRUCTION  367 

themselves  some  theory  in  the  matter,  which  although  it 
may  not  be  expressed  as  a  whole,  nevertheless  is  by  impli- 
cation the  dominating  force  in  their  juridical  thought. 
Finally,  certain  choice  minds  —  and  doubtless  I  am  far 
from  being  acquainted  with  them  all  —  have  approached 
the  question  frankly  and  proposed  more  or  less  exact  solu- 
tions. 

I:  The  Nature  of  Juridical  'Construction.'  In  a  very 
broad  sense,  every  theoretical  work  is  termed  "juridical 
construction."  But  this  must  not  be  misunderstood.  The 
task  of  theorizing  is  not  wholly  identical  with  the  work 
of  the  legal  author.  The  author  does  not  confine  himself 
to  forming  theory,  nor  is  he  the  only  one  who  forms 
it.  Besides,  theory  has  here  a  very  special  meaning, 
and  is  virtually  that  of  systematization  or  logical  organ- 
ization of  the  Law. 

Whoever  wishes  to  trace  the  Law  back  to  its  logical  ele- 
ments must  adopt  the  fourfold  division  of  the  functions 
of  juridical  science, — political,  legislative,  judiciary  and 
theoretical.  The  political  function  evaluates  laws  already 
made  or  those  about  to  be  made;  the  legislative  fixes 
what  constitutes  the  law;  the  judiciary  applies  the  law  to 
particular  cases;  finally,  the  theoretical  coordinates  the 
provisions  of  the  statute  and  when  need  be  those  of  judicial 
decision.  But  what  is  very  distinct  in  logic  is  easily  con- 
fused in  practice,  and  in  fact  it  seems  absolutely  impossi- 
ble to  assign  to  each  function  an  organ  which  is  devoted 
to  it  exclusively. 

In  this  matter,  the  authority  of  the  judge  is  widely  ex- 
tensive. In  deciding  disputes  between  individuals  and 
without  going  beyond  his  jurisdiction,  he  may  exercise  all 
the  juridical  functions.  In  fact,  at  least  to  a  certain  de- 
gree, he  does  exercise  them.  But  the  jurist,  lacking  legal 
authority,  evidently  works  in  a  more  Platonic  manner, 
yet  in  a  no  less  extended  domain.  He  is  likewise  politi- 
cian, lawmaker  and  judge,  after  a  hypothetical,  contin- 


368  THE  RATIONAL  IN   LAW          [  CH.  XI 

gent,  and  even  an  imaginary  fashion.  But  whether  it  is 
a  question  of  reality  or  imagination,  the  nature  of  the 
work  is  in  nowise  affected. 

In  the  majority  of  legal  treatises  there  is  a  political 
leaning:  attempts  to  estimate  the  value  of  laws;  critical 
explanations  of  their  advantages  and  disadvantages; 
moral,  economical  and  sentimental  considerations  which 
justify  or  condemn  them;  the  pointing  out  of  proposed  re- 
forms and  an  estimation  of  their  value.  This  is  what  has 
been  called  "social  data,"  and  every  jurist  is  interested 
therein  to  a  certain  extent.  This  political  adjunct  is  eas- 
ily distinguished  from  the  doctrinal  work  itself. 

No  more  are  the  explanation  and  interpretation  of  the 
will  of  the  lawmaker  a  part  of  the  doctrine,  but  should 
be  classed  in  the  legislative  function.  When  he  exerts 
every  effort  to  make  known  all  the  commands  which  the 
lawmaker  has  given  by  expressing  himself  in  a  clear  —  and 
sometimes  in  an  obscure  —  fashion,  the  legal  commentator 
is  simply  the  servant.  He  is  like  an  intelligent  domestic 
who  understands  with  half  a  word  the  orders  of  his  mas- 
ter. These  orders  would  remain  a  dead  letter  if  they 
were  not  understood.  The  framers  of  laws  are  likewise 
fortunate  in  having  intelligent  servants  who  do  not  com- 
pel them  to  be  accurate  in  every  little  detail  of  what 
they  wish  to  say.  This  is  the  role  which  interpreters 
play.  Should  they  have  no  initiative  -themselves,  they 
are  still  collaborators  in  the  law  through  the  single  fact 
that  they  explain  it  and  place  it  within  the  reach  of  all. 
The  interpretation  of  the  law  belongs  to  the  legislative 
and  not  to  the  doctrinal  function. 

It  is  very  certain  that  the  "technic  of  interpretation" 
is  the  work  of  theorists,  and  a  very  important  part  of 
their  work.  A  great  many  writers  on  legal  subjects  have 
found  it  possible  to  believe  that  they  did  nothing  more 
than  interpret  the  laws  according  to  certain  rules. 

As  the  lawmaker  often  furnishes  only  very  general  and 


§2]  THE  CONSTRUCTION  369 

abstract  rules  from  which  more  and  more  special 
and  concrete  decisions  must  be  drawn,  one  may  easily  be 
mistaken  as  to  the  nature  of  theoretic  labor.  But  this  in 
no  way  affects  the  distinction  which  is  logically  imposed 
between  the  art  of  seeking  positive  solutions  and  that  of 
classifying  them.  To  this  last  alone,  we  give  the  name 
"theory,"  —  in  the  frank  understanding  that  we  are  depart- 
ing from  current  terminology. 

In  the  meantime,  the  jurist  invents  particular  situa- 
tions and  imaginary  conflicts,  or  examines  some  actual 
lawsuit  and  comes  to  a  conclusion  as  to  what  decision  he 
would  render  if  he  were  judge.  He  exercises  the  judi- 
ciary function  in  counterfeit,  but  he  does  not  yet  perform 
the  task  of  theory. 

Theory  is  the  form  of  Law.  A  person  may  exercise 
legislative  and  judiciary  functions  without  giving  his 
thought  any  special  form;  for  instance,  by  a  simple 
sign,  nodding  the  head,  lifting  the  hand,  dropping  a 
paper  ball  into  a  hat,  or,  as  was  the  custom  of  the  judges 
in  ancient  Egypt,  by  placing  the  figure  of  truth  upon  the 
forehead  of  the  one  who  had  been  judged  to  be  in  the 
right.  Theory's  task  consists  in  the  coordination  of 
these  general  and  particular  decisions  by  considering 
them  hypothetically  as  if  completely  devoid  of  form  at 
the  beginning.  That  is  to  say,  theory's  task  is  not  the 
monopoly  of  the  jurist.  For  nearly  all  legislators  and  a 
great  number  of  judges  give  their  decisions  a  certain 
form  at  the  moment  when  they  are  expressed.  They 
class  their  decisions  in  an  order  chosen  by  themselves, 
compare  them  with  former  decisions,  and  establish  a 
general  idea  in  relation  to  which  these  diverse  decisions 
appear  as  consequences.  Thus  they  engage  in  juridical 
construction. 

An  act  of  legislation  absolutely  free  of  all  theory 
would  be  possible  only  in  an  extremely  primitive  civili- 
zation. For  since  any  person  in  authority  has  to  give 


370  THE  RATIONAL  IN  LAW          [Ca.XI 

orders  which  are  not  to  be  executed  immediately,  and 
also  many  complex  orders,  he  is  obliged  to  adopt  a 
method,  a  very  rudimentary  one  perhaps,  but  neverthe- 
less a  method  of  classification,  which  is  of  the  same 
nature  logically  as  the  most  learned  juridical  'construc- 
tion.' In  the  simplest  law,  the  theoretic  feature  is  always 
noticeable,  in  ordinary  codification  it  is  considerable, 
while  in  scholarly  codes  the  legislative  act  may  end  by 
being  no  more  than  a  stamp  set  upon  the  labor  of  a  pure 
theorist. 

The  judge  who  hands  down  his  decisions  in  certain 
forms  is  also  engaged  in  juridical  'construction.' 

II:  Principal  Forms  of  Juridical  '  Construction .'  Since 
this  is  not  a  treatise  on  juridical  logic,  we  are  not  going 
to  make  a  complete  classification  of  juridical  'construc- 
tions,' something  which  even  legal  logicians  do  not  do. 
It  will  be  sufficient  to  give  several  specimens. 

(1)  The  simplest  pronouncement  of  a  command  or 
a  prohibition  involves  the  choice  of  certain  peculiar  ex- 
pressions necessary  to  its  comprehension  and  execution. 
If,  however,  the  framer  of  laws  has  no  other  end  in  view 
than  the  expression  of  an  exact  and  isolated  command,  it 
can  scarcely  be  said  that  he  creates  a  piece  of  doctrinal 
work.  Here,  as  in  every  question  of  degree,  the  distinc- 
tion is  a  very  delicate  one. 

But  there  is  evidently  doctrinal  labor  whenever  con- 
crete dispositions  are  presented  in  a  certain  order,  or  at 
least  when  this  order  is  not  due  entirely  to  chance,  which 
is  seldom  the  case  even  in  very  primitive  works.  The 
Salic  law  is  not  strong  in  theory  and  systematization.  It 
follows,  nevertheless,  a  plan  and  a  method,  certain  fea- 
tures of  which  are  easily  distinguishable,  although  the 
product  dealt  with  belongs  to  an  intellectuality  very  dif- 
ferent from  our  own.  In  two  texts  whose  contents  are 
nearly  identical  but  differently  arranged,  the  order  alone 
can  reveal  to  us  very  different  general  conceptions  of 


§2]  THE  CONSTRUCTION  371 

Law  and  of  society.  The  comparative  study  of  plans 
of  various  juridical  works  is  equally  interesting  and  fruit- 
ful. It  is  quite  certain  that  whatever  is  placed  in  the 
first  line,  whether  it  be  the  principles  relative  to  the 
power  of  sovereigns,  the  dispositions  of  procedure,  the 
principles  of  criminal  law,  the  definition  of  justice  or  the 
division  of  laws  —  the  fact  of  its  being  placed  thus  reveals 
independently  of  its  content  mentalities  of  very  different 
types. 

(2)  More  complex  and  more  scholarly  than  the  task 
of  explaining  texts  is  that  of  examining,  scrutinizing  and 
comparing  them.  No  juridical  science  can  dispense  with 
such  labor. 

Each  authoritative  command  is  self-sufficient  when  its 
meaning  is  clearly  determined.  Suppose  —  what  is  chi- 
merical —  a  code  simple,  clear,  within  general  reach,  and 
foreseeing  without  ambiguity  all  the  possible  and  imagi- 
nary solutions  of  details.  It  seems  that  in  such  a  case  the 
theorist  would  have  nothing  to  do  and  might  only  con- 
fuse the  questions  at  issue.  And  so,  when  the  legislator 
labors  under  the  delusion  that  he  has  created  a  perfect 
piece  of  work,  he  is  anxious  to  prohibit  all  commentary, 
which  seem  to  him  useless  and  accordingly  dangerous. 
But  it  is  impossible  to  prohibit  men  from  making  use  of 
their  brain  power  even  in  the  presence  of  the  most  re- 
vered texts.  Explanatory  comments,  contrasting  of  com- 
mon characteristics,  comparison  and  generalization,  may 
be  followed  by  cultivated  minds  through  sheer  intellec- 
tual necessity  and  without  any  intention  whatever  of  criti- 
cizing or  even  of  interpreting.  We  are  then  in  the  pres- 
ence of  a  pure  constructive  operation.  In  doing  this,  the 
jurist  adds  nothing  to  the  law,  but  he  enriches  juridical 
thought  infinitely  by  constantly  opening  up  new  ooints 
of  view. 

Thus  a  code  decrees  in  a  certain  number  of  cases  that  a 
person's  property  should  not  be  restored  to  him;  the 


372  THE  RATIONAL  IN  LAW  [CH.X! 

jurist  groups  these  different  cases  and  makes  a  theory  of 
the  law  of  possession.  Thus  the  law  attaches  certain  con- 
sequences to  imprudent,  negligent  or  deceitful  acts  in  ju- 
ridical life;  the  jurist  disengages  from  these  the  idea  of 
fault,  and  of  fraud.  Thus  the  legislator  ordains  that 
certain  formalities  must  be  observed  in  juridical  acts 
under  penalty  of  certain  results;  the  jurist  compares, 
and  from  them  composes  a  general  system  of  void  and 
voidable  acts.  He  may  do  all  this  without  meaning  to 
criticize  or  even  to  clarify  in  any  way  the  concrete 
commands  contained  in  the  texts ;  they  remain  in  law  just 
what  they  were.  Yet  the  mere  fact  of  having  manipu- 
lated and  moulded  the  juridical  material  predisposes  the 
jurist  and  all  who  come  under  his  influence  to  look  differ- 
ently upon  the  present  and  the  future  provisions  of  the 
law. 

The  jurist,  be  it  understood,  nearly  always  employs  his 
doctrinal  abstractions  with  the  aim  of  interpretation;  but 
though  the  two  functions  are  performed  by  the  same  man, 
that  does  not  prevent  them  from  being  separate  and  dis- 
tinct. 

This  labor  of  systematization  consists  especially  in  the 
grouping  of  abstractions.  It  may  be  centered  about  a 
concrete  nucleus  without  affecting  its  character.  Thus  a 
manual  may  be  compiled  for  the  use  of  the  justice  of  the 
peace,  the  commissioner  of  police,  the  constable,  the 
rural  police,  the  merchant,  the  farmer,  and  so  on,  by 
grouping  together  all  legal  questions  which  one  or  the 
other  of  these  personages  ought  to  understand  in  order 
to  know  what  to  do  in  the  varied  happenings  of  his  pro- 
fessional life.  Without  having  any  especial  influence 
upon  the  juridical  mind,  such  treatises  when  well  done 
demand  a  certain  effort  of  analysis  and  are  not  lacking  in 
interest. 

(3)  Finally,  in  a  third  group  we  place  studies  dealing 
with  the  nature  of  institutions.  Every  social  act  under 


§2]  THE   CONSTRUCTION  373 

the  surveillance  of  the  law  is  submitted  to  a  series  of 
commands  and  prohibitions  which  accompany  it  through 
all  its  phases.  Thus  the  institution  of  marriage  may  be 
subject  to  legal  requirements  from  the  first  meeting  of 
those  who  later  become  engaged  —  and  even  before  this  — 
down  to  the  death  of  the  married  persons  and  even  after. 
So  in  the  sale,  the  law  may  direct  the  buyer  from  the 
time  he  makes  the  first  tentative  offers  to  procure  an 
object  for  a  sum  of  money,  and  the  seller  from  the  time 
he  makes  his  first  tentative  efforts  to  obtain  money  in 
exchange  for  the  object.  It  may  follow  them  through  all 
the  stages  —  negotiation,  the  bargaining,  the  agreement,  the 
delivery  of  the  goods  and  the  payment  —  down  to  the 
time  when  the  two  parties  are  completely  and  definitively 
satisfied.  Generally  the  requirements  of  the  law  follow 
the  life  of  the  concrete  act  through  all  its  phases,  and  if 
these  prescriptions  are  numerous  enough,  they  shape  the 
general  contours  of  these  phases.  So  true  is  this  that  the 
legal  prescriptions  outlining  the  institutions  finally 
come  to  represent  the  institutions  themselves.  Thus 
certain  jugglers  outline  the  form  of  a  person  by  hurling 
knives  around  him  as  he  stands  against  a  board. 

When  the  lawmaker  has  hurled  his  requirements  so  as 
to  make  the  contour  of  a  social  act,  he  has  created  a  ju- 
ridical institution.  This  is  an  exceedingly  practical  and  ad- 
vantageous result.  But  one  must  not  be  deceived; 
the  juridical  institution  thus  created  is  basically  inde- 
pendent of  the  Law  itself,  which  might  be  presented  in 
any  other  way  without  any  internal  modification.  The 
juridical  institution  is  only  a  theoretical  'construction.' 

Among  these  juridical  institutions  some  are  older,  sim- 
pler and  in  more  general  usage,  while  others  are  newer, 
more  complex  and  less  used.  It  is  a  good  method  to  ex- 
plain the  least  known  by  the  best  known,  and  the  least 
familiar  by  the  most  familiar.  Thus  one  may  analyze 
exchange  into  two  successive  sales ;  may  see  in  crop-leases 


374  THE  RATIONAL  IN   LAW  [Cn.XI 

a  tenancy  where  the  proprietor  receives  as  his  rent  a  portion 
of  the  produce,  or  consider  it  a  partnership  of  a  particu- 
lar kind;  marriage  contracts  may  be  traced  back  to  cer- 
tain types  of  commercial  contracts ;  elements  of  gambling 
may  be  derived  from  insurance;  and  so  on. 

However  fruitful  all  these  comparisons  may  be  for  the 
juridical  intellect,  they  are  only  theoretical,  that  is  to  say, 
purely  artificial  'constructions.'  Only  legal  commands, 
expressed  or  understood,  written  or  based  on  custom, 
constitute  the  institution  from  a  positive  and  juridical 
standpoint.  It  is  to  them  alone  that  one  must  turn  to 
decide  the  conflicts  which  spring  from  its  functioning.  The 
form  or  the  disposition  of  these  commands  matters  little. 
In  spite  of  the  tremendous  importance  these  'constructions ' 
have  had  in  the  development  of  juridical  science,  they 
remain  purely  theoretical,  that  is  to  say,  basically  inde- 
pendent. At  least  such  a  conclusion  seems  to  me  to  be 
the  result  of  the  analysis  that  has  just  been  made  and  of 
the  observations  we  shall  now  present  briefly. 

Ill :  Juridical  and  Logical  Value  of  Doctrinal  '  Construc- 
tion.1 To  a  question  of  positive  law,  one  ought  to  be  able 
to  answer  "Yes"  or  "No";  and  if  it  is  "Yes,"  it  is  not 
"No":  if  it  is  "No,"  it  is  not  "Yes."  Of  course  the 
"Yes"  and  the  "No"  may  have  their  partisans  and  each 
of  these  partisans  bring  forward  arguments  which  leave  us 
perplexed ;  but  even  if  we  may  be  very  much  embarrassed 
to  find  the  true  solution,  we  know  that  there  ought  to  be 
but  a  single  good  one.  Is  it  the  same  with  theoretical 
assertions  ?  Are  they  necessarily  true  or  false,  good  or  bad  ? 

An  immense  number  of  juridical  works  of  all  kinds  and 
of  all  periods  presuppose  the  affirmative,  i.e.,  that  every 
doctrinal  description  is  accurate  or  inaccurate,  that  there 
is  but  one  way  of  presenting  these  institutions  or  of  work- 
ing out  their  construction,  and  that  for  each  institution 
there  exists  a  perfectly  harmonious  logical  form  which  is 
generally  unknown  and  waiting  to  be  discovered.  Nearly 


§2]  THE  CONSTRUCTION  375 

all  juridical  dogmatics  in  good  repute  in  certain  coun- 
tries rest  upon  this  assumption. 

This  does  not  mean  that  it  behooves  us  to  scorn  dog- 
matics and  pure  juridical  'construction.'  It  is  one  of  the 
highest  forms  of  thought,  a  kind  of  intellectual  gymnas- 
tics of  superior  quality,  which  develops  at  the  same  time, 
power  of  observation,  perspicacity,  subtlety  and  ingenu- 
ity. A  mind  familiar  with  this  discipline  will  see  at  a 
glance  a  thousand  points  of  view  in  a  law  text  or  the 
draft  of  a  law  which  would  pass  unperceived  by  one  to 
whom  it  is  a  stranger.  It  is  therefore  from  the  subjective 
point  of  view  the  highest  form  of  pedagogy  —  be  not 
afraid  of  the  word  —  to  which  an  already  trained  jurist 
can  submit  himself.  From  the  objective  point  of  view, 
it  must  be  asserted  that  we  do  not  truly  understand 
an  institution  until  we  have  made  a  comparative  dog- 
matic study  of  it  by  bringing  forward  all  the  systems 
which  have  ever  been  evolved  in  the  effort  to  explain  its 
nature.  Thus  an  endowment,  a  juridical  act  which 
permits  an  individual  to  pursue  after  his  death  and  for 
an  unlimited  time  a  work  of  charity  or  public  utility  dear 
to  his  heart,  is  a  very  subtle  juridical  'construction.' 
Certain  theorists  are  particularly  struck  by  the  powerful 
effect  which  the  will  of  the  founder  produces  by  creating 
an  organism  which  will  be  able  to  function  a  long  time 
after  his  death  just  as  he  willed  it;  others  see  above  all 
else  the  property  limited  to  a  special  end;  others,  the 
end  to  which  the  property  is  devoted;  others  still,  the 
administrative  organization;  finally  others,  the  benefi- 
ciaries; and  so  on.  As  many  bases,  just  so  many  'con- 
structions.' When  one  will  have  set  forth  all  these  doc- 
trinal systems,  what  justifies  them  from  certain  points  of 
view  and  condemns  them  from  others,  and  has  thus  turned 
the  question  over  and  over  in  every  direction,  one  will 
then  have  the  most  perfect  theoretical  knowledge  of  it 
that  it  is  possible  to  obtain. 


376  THE  RATIONAL  IN   LAW          [CH.  XI 

This  explains  the  great  attraction,  the  wonderful  fasci- 
nation of  studies  in  abstract  juridical  construction.  Of 
such  books  as  these  it  may  be  said : 

"Open  it  upon  your  pillow, 
You  will  see  the  sunrise." 

But  the  great  attraction  in  these  works  lies  in  the  vari- 
ety of  the  opinions  and  of  the  argumentation.  There  is 
not  an  original  or  even  a  fantastic  idea  which  ought  to 
be  excluded  from  them,  for  the  truly  ideal  'construction' 
of  an  institution  is  the  synthesis  of  everything  that  can 
be  said  about  it. 

I  know  very  well  that  many  of  those  who  have  devoted 
their  lives  to  thedogmatic  '  construction '  of  institutions  will 
be  but  little  flattered  by  this  opinion,  for  they  claim  to 
discover  the  absolutely  correct  solutions  and  to  reject  all 
others  as  absolutely  false.  To  affirm  that  they  are  all  of 
more  or  less  value,  and  that  in  no  instance  is  one  of  them 
of  so  much  value  that  the  others  should  be  renounced  in 
its  favor,  is  not  this  depreciating  even  the  nature  of  their 
toil?  It  is  evidently  refusing  to  satisfy  fully  the  ambi- 
tions of  each,  but  it  is  perhaps  rendering  truer  justice  to 
the  common  effort.  However,  these  considerations  are  of 
no  importance.  Our  sole  desire  is  to  penetrate  juridical 
thought  and  to  understand  it  objectively.  With  this  ob- 
ject in  view,  what  is  the  value  of  'construction'? 

The  question  may  be  examined  from  a  threefold  point 
of  view. 

(1)  Is  there  necessarily  a  perfect  juridical  form  for 
each  institution  and  is  there  but  one  such  form? 

(2)  From  a  rationally  established  juridical  'construc- 
tion '  may  one  deduce  the  solution  of  an  unforeseen  practi- 
cal difficulty? 

(3)  May    the    lawmaker    and     the    judge     oblige 
the    jurist    to    accept    a    'construction'    upon    jurist's 
theory? 


§2]        .  THE  CONSTRUCTION  377 

(1)  First  Point  of  View.  If  we  consider  juridical  matter 
as  the  sum  total  of  concrete  decisions  each  of  which  has 
its  "raison  d'etre  "and  its  justification  in  a  totality  of  varied 
circumstances,  it  is  impossible  to  affirm  that  we  shall  al- 
ways find  a  general  and  theoretical  principle  which  will 
explain  all  the  elements  of  any  institution  whatever. 
Where  there  is  originally  no  logical  community,  there 
may  be  the  possibility  of  a  contingent,  but  not  of  a  neces- 
sary or  logical  relation.  Suppose  that  an  individual  who 
has  allowed  himself  to  be  guided  through  his  whole  life 
by  pleasure  and  selfishness  should  be  asked  after  his 
death  if  he  always  adhered  to  the  rules  of  strict  morality. 
This  would  not  be  impossible  if  as  a  result  of  circum- 
stances he  had  never  taken  pleasure  in  evil  doing  and  it 
had  never  been  to  his  interest.  This  would  be  a  result  of 
chance.  If,  in  the  same  way,  the  wills  of  the  different 
lawmakers  do  not  spring  from  constructive  logic,  why 
should  they  necessarily  conform  to  any  constructive  logic 
whatever?  For  that  to  be  the  case,  it  would  be  necessary 
to  invent  a  preestablished  harmony  between  the  demands 
of  social  life  and  those  of  theoretical  logic.  And  this  pre- 
established  harmony,  which  no  doubt  a  great  number  of 
jurists  are  obliged  to  take  for  granted,  whence  does  it 
spring? 

It  is,  of  course,  always  possible  with  a  little  ingenuity  — 
and  jurists  are  not  lacking  in  that  —  to  adapt  the  facts  of 
any  theory  whatsoever  to  a  framework  which  is  entirely 
foreign  to  them.  This  operation  is  not  in  itself  to  be 
condemned  if  one  bears  in  mind  its  entirely  artificial  char- 
acter. Thus  according  to  circumstances,  the  same  indi- 
vidual will  be  portrayed  as  a  saint  or  a  monster.  The 
critical  mind  will  evaluate  juridical  'construction'  with  the 
same  scepticism  that  it  does  a  newspaper  article. 

Likewise  juridical  dogmatists  have  no  right  to  deal 
harshly  with  each  other.  No  juridical  '  construction '  can 
be  false  or  ridiculous  because  none  can  be  absolutely  true 


378  THE  RATIONAL  IN  LAW       .  [Cn.XI 

or  incontestably  worthy  of  respect.  The  jurist  Toullier 
has  been  severely  reproached  for  his  "mistakes."  Among 
other  things,  he  says  that  community  between  husband 
and  wife,  as  it  is  established  by  the  French  Civil  Code, 
commences  the  moment  the  marriage  is  dissolved.  Is  it 
more  correct  to  say  it  commences  with  the  marriage? 
Both  of  these  assertions  agree  perfectly  with  certain  con- 
crete decisions  but  are  antagonistic  to  others.  A  partner- 
ship which  is  formed  by  the  fact  of  the  disappearance  of 
one  of  the  partners  is  a  fantastic  conception,  no  doubt,  but 
equally  fantastic  is  the  idea  of  a  partnership  in  which  one 
of  the  partners  has  only  rights  "in  posse."  Which  shall 
we  choose:  one  or  the  other,  neither  the  one  nor  the 
other,  or  both  at  the  same  time?  It  matters  little;  the 
important  thing  from  the  logical  point  of  view  is  not  to 
attribute  an  exaggerated  value  to  any  one  of  the  sys- 
tems. 

(2)  Second  Point  of  View.  Can  a  juridical '  construction ' 
furnish  the  solution  of  an  unforeseen  practical  question? 
Upon  this  point,  the  attitude  of  legal  theorists  is  generally 
ambiguous  and  lacking  in  frankness. 

If  'construction'  is  foreign  to  the  practical  life  of  the 
law,  and  if  practical  law  thrives  quite  as  well  in  the  ab- 
sence of  logic  and  in  a  state  of  "happy  anarchy,"  one 
cannot  see  any  justification  for  an  argument  of  '  construc- 
tion' modifying  the  law  in  the  slightest  degree,  or  extend- 
ing or  restricting  its  compass. 

Now,  very  often  one  begins  by  announcing  that  "arti- 
ficial construction,"  logic,  ought  not  in  any  degree  to  be 
a  hindrance  to- the  free  development  of  the  social  and  com- 
mercial life.  It  ought  simply  to  register  this  development 
and  direct  its  manifestations.  Some  claim  to  establish 
the  theory  of  an  institution  by  a  wise  combination  and 
treatment  of  the  concrete  data  of  the  law.  A  construction 
thus  established  from  certain  known  and  concrete  data 
ought  accordingly  to  be  of  value  only  for  these  known  and 


§2]  THE  CONSTRUCTION  379 

concrete  data.  A  new  case  arises;  whatever  may  be  its 
importance,  politics  or  the  social  data  are  alone  qualified 
to  decide  its  fate.  And  if  the  new  solution  contradicts 
the  learned  theory  which  has  been  accustomed  to  harmo- 
nize with  all  the  other  solutions,  so  much  the  worse  for 
the  learned  theory.  It  is  knocked  flat,  and  everything  is 
to  be  remade. 

If  one  wishes  to  be  logical,  one  must  decide  that  in 
no  case  can  the  most  infinitesimal  practical  interest  be 
sacrificed  to  even  the  most  learned,  complex  and  satis- 
factory 'construction.'  For  the  constructive  doctrine  can- 
not in  any  measure  do  what  is  contrary  to  its  nature. 
If  it  can  decide  one  question  of  law,  it  can  decide  all. 

Now,  the  majority  of  those  who  construct  theories 
hold  to  this  reasoning:  "The  system  must  be  made  to 
conform  to  life.  I  am  going  to  construct  a  system  by 
bringing  together  carefully  all  the  known  concrete  data. 
But  nevertheless  I  cannot  work  for  nothing.  Once  my 
work  is  finished,  the  life  of  tomorrow  must  adapt  itself 
to  my  system." 

We  see  men  as  eminent  as  Jhering  fall  into  this  in- 
consistency. One  might  heap  up  examples  by  the  hun- 
dreds to  prove  that  the  theorists  who  have  studied  the 
subject  most  deeply  are  not  very  definitely  decided  upon 
the  logical  value  of  juridical  'constructions.' 

(3)  Third  Point  of  View.  Can  the  lawmaker  impose 
doctrinal  construction?  We  admit  that  the  lawmaker 
has  the  power  to  ordain  whatever  he  wishes:  we  put  no 
limitation  upon  his  will.  It  is  a  question,  be  it  understood, 
of  the  lawmaker  in  the  abstract  and  of  logical  limitations. 
It  is  quite  certain  that  in  reality  the  lawmaker  in  flesh 
and  blood  is  always  kept  within  certain  political  limita- 
tions. But  by  its  very  nature  the  legislative  function  is 
omnipotent.  On  the  other  hand,  in  order  to  express  his 
will,  the  lawmaker  may  employ  the  language  which  he 
finds  convenient.  He  might  express  himself  by  gestures, 


380  THE  RATIONAL  IN   LAW          [Cn.XI 

if  it  pleased  him  to  do  so ;  if  he  prefers  to  employ  the  learned 
language  of  jurists,  he  may  do  that  quite  as  well.  Prac- 
tically, he  can  have  the  advantages  of  clearness,  elegance 
and  prestige  when  the  law  is  drawn  up  in  a  certain  fashion 
and  in  no  other.  Theoretically,  all  methods  of  expression 
are  equally  legitimate. 

In  fact,  since  even  in  quite  primitive  ages  laws  are 
drawn  up  by  more  or  less  skilful  jurists,  they  nearly  al- 
ways borrow  the  language  of  theory,  and  in  proportion 
as  the  law  develops,  the  tendency  to  use  abstract  language 
becomes  accentuated.  Even  the  French  Civil  Code 
abounds  in  all  sorts  of  constructions  —  definitions,  classi- 
fications, abstract  ideas  and  fictions  —  and,  as  is  well 
known,  this  is  not  what  can  be  called  a  learned  code. 
Moreover,  it  would  be  extremely  difficult  for  the  framer 
of  the  law  never  to  employ  theoretical  language. 

But  all  theoretical  '  construction '  made  by  the  legislator 
is  only  valuable  through  what  it  indicates.  It  serves  to 
show  us  what  the  concrete  solutions  are  which  he  has 
intended  to  sanction.  If  he  obtains  this  result,  the  cor- 
rection or  incorrectness  of  his  language  matters  little  to 
us.  The  interpreter  seeks  only  the  means  of  penetrating 
into  the  substance  of  the  law.  As  for  theory,  its  right 
of  criticism  remains  unmolested,  whatever  the  lawmaker 
may  say.  He  who  could  make  a  good  definition  out  of  a 
bad  one,  a  threefold  classification  adequate  when  there 
are  four  elements  to  be  classified,  or  a  fiction  a  reality, 
could  easier  change  a  man  into  a  woman.  He  cannot 
bring  it  to  pass  that  conjugal  community  "commences 
upon  the  marriage  day,"  if  in  reality,  by  virtue  of  the 
provisions  which  he  has  himself  decreed,  it  does  not 
commence  then. 

IV:  Role  of  Theoretic  'Construction'  in  Relation  to  His- 
torical Facts.  The  confusion  of  ideas  upon  the  question 
before  us  is  explained  by  the  fact  that  the  logical  and  the 
actual  historical  points  of  view  do  not  agree.  In  logic, 


§2]  THE  CONSTRUCTION  381 

the  substance  and  the  form  are  two  opposed  and  easily 
distinguishable  ideas;  in  logic,  the  lawmaker,  the  creator 
of  the  substance,  is  very  clearly  separated  from  the 
lawyer,  the  creator  of  the  form;  in  logic,  the  form  is  sub- 
ordinated to  the  substance  and  the  substance  never  de- 
parts from  the  form.  In  juridical  reality,  the  form  can 
create  the  substance,  and  accordingly  all  the  functions  of 
the  law  may  become  so  entangled  that  it  becomes  im- 
possible to  unravel  them.  The  politician  who  drafts 
bills,  the  legislator  who  decrees  laws,  the  judge  who 
applies  them,  and  the  lawyer  who  constructs  juridical 
matter,  are  all  abstract  personages  who  exist  in  no  civili- 
zation, not  even  in  ours.  In  fact,  it  is  nearly  always  very 
difficult  to  say  through  whom,  through  whose  authority, 
a  law  has  become  law. 

In  theory,  we  say  that  the  law  is  the  work  of  a  sov- 
ereign represented  by  certain  organs;  in  fact,  it  is  often 
very  difficult  for  us  to  discover  the  action  of  the  sovereign, 
the  legislating  organ,  or  even  the  legislative  function. 

The  majority  of  juridical  institutions  in  every  period 
are  produced  outside  of  the  law  under  the  form  of  usages. 
When  the  lawmaker  concerns  himself  with  them,  they  are 
already  entirely  formed.  The  legislative  function  is 
summed  up  in  a  simple  act  of  compliance;  but  even  there 
it  is  still  perceptible.  In  ancient  civilizations,  the  sov- 
ereign is  by  no  means  the  lawmaker;  he  intervenes  in 
order  to  occasion  respect  for  usages  which  he  makes  no 
pretence  of  knowing  anything  about.  Shall  we  say  that 
in  those  periods  where  the  law  is  customary,  it  is  the 
masses,  the  crowd  of  obscure,  common  people  which  per- 
forms the  legislative  function?  In  order  to  prove  the 
falsity  of  this  conception  from  a  historical  point  of  view, 
Lambert  has  traced  its  development  at  length  and  pre- 
sented many  proofs.  Usages  become  juridical  when 
they  are  sanctioned  by  tribunals;  but  tribunals  do  nothing 
but  point  out  established  usages.  So  that  the  legislative 


382  THE   RATIONAL  IN   LAW          [Cn.XI 

function  becomes  confused  with  the  judiciary  function 
and  absolutely  indistinguishable  from  it. 

In  the  same  way,  purely  theoretical  work  very  often, 
especially  in  primitive  times,  encroaches  upon  the  legis- 
lative function.  Whoever  collects  the  customs  of  his 
country,  brings  them  together  and  writes  them  down, 
even  if  he  makes  no  pretence  of  imposing  his  will  upon  his 
fellow-citizens,  nor  intends  to  do  so,  directs  the  evolution 
of  positive  law.  Solutions  to  which  he  has  given  prefer- 
ence stand  a  good  chance  of  being  chosen  above  others 
through  the  simple  fact  that  he  has  preferred  them.  A 
written  custom  causes  the  disappearance  of  many  un- 
written ones.  This  is  a  commonplace  fact  in  the  history 
of  juridical  literature;  a  simple  clerk  of  no  authority  or 
pretension  has  often  had  a  decisive  influence  upon  the 
progress  of  law.  The  most  widely  known  and  influential 
juridical  works  nearly  always  owe  their  reputation  to 
qualities  of  form.  Every  collection  of  ordinances, 
decretals  or  judicial  decisions  results  in  bringing  certain 
juridical  rules  into  the  foreground  and  in  effacing  or 
obscuring  others. 

It  is  not  only  a  question  of  the  past.  In  every  period, 
the  theoretical  function  partly  creates  the  law  even  when 
it  has  no  intention  of  doing  so.  The  simple  act  of  classi- 
fying, defining  and  constructing  has  an  influence  upon 
concrete  solutions  which  have  not  yet  been  proved. 
This  is  a  natural  tendency  of  the  human  mind,  an  appli- 
cation —  if  you  choose  —  of  the  law  of  least  resistance. 
For  solutions  of  small  importance,  the  argument  of  'con- 
struction,' will  always  take  precedence  over  the  political 
argument,  since  it  is  easier  and  more  exact;  and  the  ac- 
cumulation of  minor  solutions  of  details  may  transform 
the  general  aspect  of  the  whole  of  an  institution. 

To  summarize,  it  may  be  affirmed  that  in  the  creation 
of  the  law,  the  form  very  often  involves  the  substance. 
Whoever  writes  down  the  law  makes  the  law,  in  however 


§3]  THE  FICTION  383 

minute  or  considerable  degree.  It  may  equally  be 
affirmed  that  this  creation  of  the  law  by  theory  is  non- 
sense from  the  logical  point  of  view,  since  treatment  of 
the  form  must  leave  the  substance  intact.  Hence,  as  theo- 
retical labor  is  indispensable,  as  it  has  always  existed  and 
always  will  exist,  we  are  obliged  to  conclude  from  this 
that  juridical  science  is  affected  by  an  intellectual  defect 
of  which  it  can  never  be  cured,  and  which  will  prevent 
its  ever  taking  a  place  among  the  forms  of  science  be- 
longing to  pure  logic. 

E.  Fiction 

§  3.  The  Legal  Fiction.  Modern  lawyers  —  a  very  great 
number  of  them  at  least  —  have  an  aversion  to  the  fiction 
which  I,  never  having  understood  their  reasons,  cannot 
share.  And  if  I  have  never  understood  these  reasons  for 
hatred  of  the  " fictitious,"  it  is  because  I  have  never  seen 
them  explained  with  even  the  slightest  attempt  to  face  the 
question.  Perhaps  there  may  exist  a  book  where  one  can 
find  them  thus  explained,  but  I  do  not  know  of  it.  At 
every  turn  I  have  seen  "fiction  "  and  "reality  "  set  in  oppo- 
sition to  each  other  without  further  explanation,  and  the 
arguer  seemed  to  say  to  his  public:  "Not  to  prefer  the 
reality  to  the  fiction  would  be  the  proof  of  a  very  impracti- 
cal mind." 

Jhering,  undoubtedly,  has  already  defended  fiction 
against  its  detractors.  Before  undertaking  to  justify  it 
anew,  one  cannot  refrain  from  mentioning  how  pleasing 
and  profound  are  the  few  pages  in  which  he  has  accom- 
plished this  task.  In  spite  of  the  powerful  support  which 
a  brief  and  precise  quotation  from  Savigny  furnished  him, 
in  spite  of  the  keen  admonition  to  future  theorists  — 
"The  Kobold  of  the  fiction  often  takes  cruel  vengeance 
upon  those  who  pursue  it"  -the  passage  from  Jhering 
has  had  scarcely  any  influence,  and  the  old  lack  of  under- 
standing has  appeared  again.  Nevertheless,  in  his  at- 


384  THE   RATIONAL  IN  LAW          [CH.XI 

tempt  at  rehabilitation,  the  profound  jurist  was  a  little 
short  of  the  truth.  The  fiction  was  for  him  a  useful  but 
an  inferior  and,  in  some  respects,  a  defective  instrument, 
while  in  our  eyes  it  is  as  legitimate  as  any  other  juridical 
'construction,'  no  matter  what.  His  ingenious  distinction 
between  the  dogmatic  function  of  the  fiction  and  its  his- 
torical function  does  not  seem  to  me  any  less  definitive, 
and  I  shall  use  it  as  the  basis  of  my  exposition  of  this 
intellectual  process  which  is  of  such  importance  in  juridical 
method. 

The  utterance  of  anything  not  true  may  constitute  a 
"lie,"  a  "myth,"  or  a  "fiction."  The  lie  may  be  de- 
fined as  "the  affirmation  of  a  fact  contrary  to  the  truth 
with  the  intention  of  deceiving";  the  myth  is  the  affirma- 
tion of  a  fact  contrary  to  the  truth  —  though  not  known 
to  be  such  —  by  a  sincere  but  rather  weak  intellect;  the 
fiction  is  the  enunciation  of  a  fact  which  is  false  and  is 
recognized  and  presented  as  false.  Moreover,  in  order  for 
it  to  be  a  lie,  a  myth  or  a  fiction,  the  falsity  of  the  asser- 
tion need  not  be  evident  or  absolute.  To  announce  an 
improbable  event  as  very  probable,  a  probable  event  as 
certain,  or  to  embrace  everybody  in  a  proposition  which 
in  all  likelihood  pertains  but  to  a  few,  is  likewise, 
according  to  circumstances,  a  lie,  a  myth  or  a  fiction. 

Besides,  the  nature  of  the  unreal  alleged  fact  matters 
little.  This  may  be  a  fantastic,  supernatural  fact,  one 
contrary  to  nature  (the  dead  gives  seisin  to  the  living), 
a  natural  physical  fact  which  has  not  yet  become  a  reality 
(the  birth  of  a  child  who  is  only  conceived) ,  or  a  legal  fact 
(the  existence  of  a  law  which  is  no  longer  in  existence,  or 
the  supposition  of  a  formality  which  has  not  been  ob- 
served). The  juridical  nature  of  all  of  these  assertions  is 
identical ;  when  one  enunciates  them  without  being  his  own 
dupe  or  wishing  to  dupe  others,  a  fiction  is  created. 

Juridical  fictions  form  two  very  distinct  groups:  fic- 
tions of  'construction'  or  theoretic  fictions,  which  are  of 


§3)  THE  FICTION  385 

use  in  the  exposition  and  abstract  study  of  concrete  pro- 
visions of  the  law;  and  procedural  fictions,  employed  by 
the  judge  in  order  to  apply  the  law  to  the  real  facts  of 
practical  life.  The  latter  govern  particularly  in  questions 
of  evidence. 

The  following  paragraphs  apply  only-  to  theoretic  fic- 
tion. Procedural  fiction  will  be  studied  separately. 

I:  Dogmatic  Function  of  the  Fiction.  Thus  juridical 
logic  often  asserts  what  is  false.  Now  if  it  is  asked  why, 
in  a  serious  work  with  a  practical  aim,  anyone  can  indulge 
in  statements  which  he  knows  to  be  false  and  declares 
to  be  such,  it  is  easy  to  find  a  great  many  reasons  for 
this,  and  all  of  them  are  sound. 

Might  the  fiction  be  but  a  way  the  jurist  has  of  amusing 
himself?  To  speak  of  amusement  is  to  speak  of  attraction, 
interest,  more  intense  mental  activity,  deeper  attention 
sustained  without  effort  or  fatigue,  and  better  retention 
in  the  memory.  It  would  be  something  in  itself  to  lighten 
the  juridical  burden. 

It  is  undoubtedly  no  small  thing  if  the  fiction  allows  the 
presentation,  under  a  form  of  simple  imagery,  of  very 
accurate  and  complex  fundamental  ideas  which  could  not 
be  expressed  so  fully  except  with  considerably  more  labor. 
The  fiction  is  the  algebra  of  law,  and  a  picturesque  form 
of  algebra  besides.  There  is  as  much  substance  in  these 
five  words,  "The  dead  gives  seisin  to  the  living,"  as  in  an 
algebraic  formula,  and  the  conclusions  which  may  be 
drawn  from  it  are  manifold.  From  a  single  principle, 
"The  same  tongue  which  has  bound  can  unbind,"  the 
Talmudists  frame  a  theory  of  evidence  which  is  as  subtle 
as  it  is  felicitous.  And  certain  Mussulman  jurists  ex- 
plain the  idea  of  the  "lawful  act"  and  the  "unlawful 
act"  by  "An  ass  guiding  a  wandering  she-camel,"  much 
more  satisfactorily  and  a  thousand  times  more  clearly 
than  any  European  jurist  whatever. 

Finally,  precisely  because  the  fiction  does  falsify  reality, 


386  THE  RATIONAL  IN  LAW          [CH.XI 

it  frequently  happens  that  it  is  very  strictly  and  subjec- 
tively exact,  much  more  strictly  so  than  any  other  form 
of  thought  expression.  It  is  an  essentially  human  tend- 
ency to  refuse  to  believe  sad  events  and  to  invent  happy 
ones.  What  the  lawmaker  sometimes  tries  to  do  is  pre- 
cisely this,  —  to  efface  unfortunate  realities  as  far  as  pos- 
sible and  to  evoke  the  shades  of  fortunate  realities  which 
have  not  been  achieved.  Thus  the  idea  of  a  Roman 
citizen  taken  prisoner  by  the  enemy  and  led  into  slavery 
was  too  hard  on  Roman  pride.  Existence  of  such  a  fact 
was  not  admitted.  If  the  citizen  died  a  slave,  it  was  said 
that  he  died  in  war  and  was  killed  on  the  field  of  battle; 
if  he  regained  his  liberty,  he  was  supposed  to  have  been 
at  home  all  of  the  time  at  the  head  of  his  family  and  his 
business. 

The  same  desire  to  efface  the  reality  of  an  unfortunate 
event  explains  the  origin  of  representation  after  death. 
If  a  father  dies  before  the  normal  time,  before  he  has  had 
a  chance  to  secure  his  share  of  an  inheritance,  his  children 
are  left  in  a  sorry  situation.  The  law  resurrects  the  spirit 
of  the  dead  man  • —  ' '  mortui  praesens  imago ' '  —  and  every- 
thing goes  on  as  if  he  were  still  living  and  able  to  go  him- 
self and  draw  his  share. 

This  thesis  could  be  illustrated  by  thousands  of  ex- 
amples taken  from  every  legal  code.  While  the  fiction 
is  a  subtle  instrument  of  juridical  technic,  it  is  also  clearly 
the  expression  of  a  desire  inherent  in  human  nature,  the 
desire  to  efface  unpleasant  realities  and  evoke  imaginary 
good  fortune. 

II :  Historical  Function  of  the  Fiction.  Suppose  that  in 
order  to  give  the  impression  of  being  most  practical  and 
reasonable  men,  we  proposed  no  longer  to  use  metaphor 
in  our  speech  and  to  abandon  its  use  entirely  to  poets  and 
litterateurs.  Unless  we  returned  to  a  state  of  childhood  — 
and  even  then !  —  we  would  be  none  the  less  compelled  to 
employ  speech  made  up  in  great  part  of  metaphors,  for 


§3]  THE  FICTION  387 

each  abstract  term  comes  from  one  or  more  concrete 
terms.  When  we  wish  to  make  the  meaning  of  an  old 
word  more  exact,  we  return  to  this  metaphorical  origin 
and  the  word,  though  worn  by  usage,  immediately  as- 
sumes fresh  life. 

Now  the  fiction  has  played  a  part  in  law  exactly  iden- 
tical with  that  of  the  metaphor  in  language.  A  whole 
world  of  fiction  has  gone  toward  the  making  of  juridical 
ideas  which  seem  to  us  most  practical  and  familiar.  The 
legal  systems  which  were  the  richest  in  imagery  at  their 
origin  are  today  the  richest  in  precise  and  learned  con- 
ceptions, and  it  was  by  passing  from  fiction  to  fiction 
that  their  most  important  progress  has  been  realized.  If 
it  were  necessary  to  illustrate  this  truth  by  all  the  ex- 
amples of  it  which  history  affords,  enormous  volumes 
would  certainly  not  exhaust  the  subject.  The  oldest  and 
most  essential  ideas  are  nearly  all,  if  not  all,  fictitious. 
Marriage  is  a  fictitious  purchase  and  sale,  the  power  of  a 
father  is  a  fictitious  master's  power,  adoption  is  a 
fictitious  fatherhood,  in  certain  respects  the  last  will  and 
testament  is  (at  least  sometimes  is)  a  fictitious  adoption, 
legitimation  assumes  fictitiously  a  marriage  which  never 
existed,  etc.  It  would  not  therefore  be  inaccurate  to 
claim  that  our  reality  is  simply  fiction  differentiated,  and 
that  at  bottom  all  law  is  reduced  to  a  series  of  fictions 
heaped  one  upon  another  in  successive  layers. 

Tiraquellus,  the  skilful  and  distinguished  jurist  of  the 
beginning  of  the  sixteenth  century,  put  an  interesting 
case  which  was  discussed  a  long  time  in  scholastic  circles. 
The  owner  of  a  piece  of  real  estate  held  in  trust  to  be 
handed  down  in  male  entail  in  order  of  primogeniture 
has  a  son  by  a  concubine.  Immediately  afterward  he 
marries  another  woman  of  good  moral  character  by  whom 
he  likewise  has  one  or  .more  sons.  His  legitimate  wife 
dying,  he  marries  his  former  concubine  and  by  this  fact 
gives  his  bastard  the  benefit  of  legitimation.  Who  will 


388  THE  RATIONAL  IN  LAW  [Cn.XI 

be  the  "primogenitus,"  the  "primum  natus,"  that  will 
succeed  to  the  real  estate  in  question? 

There  is  in  this  problem  but  one  real  and  certain 
physical  fact,  —  the  birth  of  the  bastard  before  the  legiti- 
mate son.  The  two  relations  of  paternity  are  presump- 
tions; but  the  legitimate  paternity  is  more  fictitious  than 
the  natural  paternity  because  it  rests  upon  a  presumption 
"juris  et  de  jure."  Since  marriage  is  a  simple  legal  for- 
mality, it  depends  purely  and  simply  upon  the  will  of  the 
law  and  has  no  other  effects  than  those  which  result  from 
the  legal  system  as  a  whole.  Finally,  the  legitimization  by 
subsequent  marriage  which  causes  the  bastard  to  be  con- 
sidered as  legitimate  since  his  birth,  is  a  fiction,  but  a 
fiction  which  contradicts  not  a  physical  fact  but  a  legal 
provision.  The  conflict  depends  therefore  not  upon  the 
real  or  fictitious  nature  of  institutions,  but  upon  the  scope 
the  lawmaker  intended  to  give  them.  Many  old  authors 
consider  the  fiction,  "  retroactivity  by  legitimization," 
ought  to  yield  to  marriage  and  paternity,  which  they 
consider  real  facts,  while  the  fictitious  element  is  of  al- 
most equal  weight  in  the  opinion  of  others. 

This  proves  that  very  old  fictions  are  no  longer  con- 
sidered as  such.  All  of  our  institutions  were  of  a  fictitious 
character  originally;  if  one  would  try  to  strip  the  Law  of 
every  fiction  of  the  past  as  well  as  of  the  present,  not  much 
would  be  left.  Such  is  one  of  the  chief  elements  of  its 
historical  function. 

A  propos  of  Roman  Law,  Savigny  has  brought  forward 
another  element  of  this  historical  function.  "If  a  new 
juridical  form  is  produced,  it  is  at  once  connected  with  a 
previous  form  and  thus  shares  in  its  improvement  and 
development."  Thus  the  Roman  praetor  effected  nu- 
merous and  important  reforms  in  an  extremely  simple 
way  and  without  affecting  ancient  principles.  Among  his 
fictitious  actions,  he  assumed  that  a  foreigner  has  the 
qualifications  of  a  citizen;  that  possession,  in  certain 


§3]  THE  FICTION  389 

instances,  has  been  a  fact  a  much  longer  time  than  it 
really  has;  and  so  on.  And  so  an  alien's  title,  or  a 
bare  legal  title,  might  become  a  full  beneficial  title, 
without  the  necessity  of  any  legislation  whatever.  Even 
Justinian,  who  often  declares  himself  hostile  to  fictions, 
occasionally  found  the  process  very  convenient  for  the 
purpose  of  effecting  sometimes  the  most  important  re- 
forms. The  restoration  of  the  dowry  to  the  wife  at  the 
dissolution  of  the  marriage  was  effected  before  his  day, 
in  one  way  when  there  had  been  a  solemn  stipulation 
at  the  time  of  the  bestowal,  and  in  another  way 
when  there  had  been  no  such  stipulation.  Giving  pref- 
erence to  the  first  procedure,  Justinian  in  his  lofty  style 
confines  himself  to  making  a  declaration  in  favor  of  fiction : 
every  woman  will  always  be  regarded  as  having  made  the 
stipulation.  He  could  have  pointed  out  the  new  legal 
process  of  settlement  in  detail  quite  as  well  by  avoiding 
the  fictitious  form.  That  would  probably  have  been  more 
difficult  for  the  framer  of  the  law  and  also  perhaps  for 
the  interpreters;  but  the  substance  of  the  law,  in  so  far 
as  it  concerns  the  position  of  wives,  would  have  been 
absolutely  identical.  This  is  what  many  authors  have 
not  been  able  to  see.  "This  is  the  special  privilege  of  the 
dowry,  that  the  wife  can  lie  with  impunity  and  say: 
'When  you  married  me,  you  promised  with  a  solemn 
promise  to  deliver  over  to  me  a  dowry,'  and  yet  it  is  not 
true,"  says  an  old  lawyer,  who  in  company  with  others 
sees  a  privilege  to  the  wife  in  what  is  only  a  liberty  taken 
by  the  lawmaker  with  the  form. 

The  fiction  by  which  formalities  that  have  not  been 
observed  in  reality  are  considered  to  have  been,  is  of  all 
times  and  all  places.  Is  there  any  need  to  point  out  that 
it  is  by  this  means  that  the  formalities  relative  to  the 
sale  disappeared  from  old  French  Law,  to  give  way  to  the 
principle  that  the  sale  is  effected  by  the  sole  consent  of 
the  parties? 


390  THE  RATIONAL  IN  LAW  [Cn.XI 

III:  Logical  Value  of  the  Theoretic  Fiction.  In  order  to 
simplify  the  solution  of  a  mathematical  problem,  there  is 
very  often  introduced  into  the  calculations  data  which  are 
totally  foreign  to  it,  and  this  is  true  even  in  the  simplest 
operations  in  arithmetic.  If  I  wish  to  divide  forty-five 
hundred  by  five  hundred,  I  can  commence  by  reducing 
them  to  forty-five  and  five,  first  dividing  them  by  one 
hundred.  Now  the  number  one  hundred  was  foreign  to 
the  problem  as  it  was  stated.  In  the  solution  of  algebraic 
equations  any  quantities  whatever  are  introduced  at 
every  turn,  which  by  multiplying  or  dividing  the  two 
members  simplify  them  without  changing  their  value.  In 
geometry,  each  person  constructs,  according  to  his  fancy, 
upon  the  main  figure,  as  many  accessory  figures  as  he 
pleases,  to  enable  him  to  solve  the  problem.  It  is  a 
question,  to  be  sure,  of  never  losing  sight  of  what  is  given 
as  true,  or  is  so  by  hypothesis  and  construction,  and  of 
what  is  true  by  demonstration.  Juridical  fictions  are  of 
an  absolutely  identical  nature.  They  cannot  falsify  a 
process  of  reasoning  so  long  as  one  does  not  forget  what 
they  have  in  them  of  the  relative,  and  so  long  as  one  can 
calculate  to  what  extent  they  represent  real,  and  to  what 
extent  imaginary,  dispositions.  And  this  is  never  very 
difficult. 

Even  if  incapable  of  drawing  a  circle,  I  may  be  much 
more  capable  of  demonstrating  a  theorem  upon  the 
circle  and  making  its  properties  understood,  than  a  person 
who  with  the  aid  of  a  compass  draws  an  incomparably 
more  regular  figure  but  is  ignorant  of  every  element  of 
geometry.  With  a  deformed  and  hence  absolutely  fic- 
titious drawing,  an  absolutely  faultless  course  of  geomet- 
rical reasoning  may  be  established,  while  absolutely  false 
calculations  may  be  based  upon  a  faultless  figure.  Geom- 
etry knows  very  well  that  the  radii  of  a  badly  drawn 
circle,  equal  by  fiction,  are  very  unequal  in  reality,  but 
that  is  no  obstacle  in  its  calculation, 


§3]  THE  FICTION  391 

Can  it  be  true  that  the  jurist  is  of  such  a  rudimentary 
mentality  that  he  cannot  perform  the  same  mental  opera- 
tion? If  a  jurist  were  found  for  whom  it  was  difficult 
to  grasp  the  exact  import  of  fictions,  one  who  was  incapable 
of  understanding  what  the  artifice  may  legitimately  give 
and  what  it  may  not,  he  would  do  well  to  renounce  law, 
as  well  as  every  other  abstract  science.  But  among  those 
who  have  called  down  maledictions  upon  the  fiction,  there 
is  not  one  who  was  not  capable  of  understanding  it  and  of 
driving  from  it  every  legitimate  and  desirable  benefit. 

A  fiction,  be  it  understood,  is  only  a  juridical  'construc- 
tion '  like  any  other.  It  represents  the  law  both  good  and 
bad,  but  has  no  claim  to  create  law.  To  try  to  make  strict 
and  logical  deductions  from  it  is  nonsense.  If  it  is  very 
good,  it  will  outline  concrete  provisions  of  the  law  wonder- 
fully well;  if  it  is  bad,  it  will  outline  them  very  clumsily, 
and  it  will  be  necessary  to  complement  it  with  a  great 
number  of  exceptions  in  order  to  give  it  its  correct  value. 
In  either  case,  every  one  should  know  whether  he  believes 
it  useful  or  not  to  take  advantage  of  it.  In  any  case,  one 
must  steer  clear  of  the  belief  that  a  fictitious  construction 
is  opposed  to  a  real  one.  Every  juridical  construction  is 
simply  a  question  of  form,  hence  arbitrary  and  artificial. 
The  fiction  is  a  form  created  by  the  imagination  and  may 
have  its  advantages  and  disadvantages;  logically,  it  is  ab- 
solutely identical  with  any  other  form.  Every  theoretic 
fiction  may  be  resolved  into  a  series  of  concrete  disposi- 
tion of  which  it  is  simply  the  clothing. 

IV:  Fiction  as  a  Kobold.  It  certainly  seems  that 
such  was  pretty  much  the  opinion  of  the  great  juriscon- 
sults of  the  classical  period  of  the  Romans.  Caught  be- 
tween the  practicing  lawyers  who  always  have  a  tendency 
to  exaggerate  the  scope  of  principles,  and  the  philosophical 
men  of  letters  or  other  laymen  who  despise  and  ridicule 
them,  the  jurisconsults  knew  how  to  preserve  their  equi- 
librium. While  handling  with  elegance  and  skill  a  world 


392  THE  RATIONAL  IN   LAW          [CH.  XI 

of  fictions,  they  were  never  their  slaves.  They  nearly 
always  escaped  the  danger  of  being  deceived  by  the  form, 
and  evinced  neither  sympathy  for  nor  any  particular  an- 
tipathy against  positive  procedure. 

Besides,  it  is  very  probable  that  not  having  exactly 
the  same  intellectual  tendencies,  if  they  had  been  asked 
what  they  thought  of  juridical  fictions,  they  would  have 
given  quite  different  answers.  Papinian  seems  to  be  the 
only  one  who  revealed  —  very  vaguely,  however  —  his 
opinion  in  this  matter.  As  the  few  words  which  express 
it  have  been  very  often  invoked  in  the  systems  of  early 
Romanist  jurisprudence,  it  will  perhaps  be  useful  to  make 
mention  of  them.  It  is  in  fragment  twenty-three, 
XXVIII,  21,  that  we  see  for  the  first  time,  we  believe,  the 
"veritas"  placed  in  contrast  to  the  " imago  naturae." 
A  son  has  been  emancipated  by  his  father;  he  is  imme- 
diately adrogated  by  him  so  that  he  might  logically  be 
considered  no  longer  a  natural  but  an  adopted  son. 
Papinian  takes  the  contrary  position:  one  can  never  be 
the  adopted  son  of  his  real  father;  he  always  remains  his 
natural  son,  for  the  image  ought  not  to  obscure  by  its 
shadow  the  reality;  the  fictitious  paternity  created  by  the 
adrogation  ought  not  to  supplant  the  natural  paternity, 
the  real  fact:  "For  in  nearly  every  respect,  it  is  fitting 
that  it  should  be  thus  observed  that  a  son  should  never 
be  understood  to  be  the  adopted  son  of  his  true  father 
lest  the  truth  should  be  obscured  by  the  image  of 
nature."9  The  placing  of  "fere"  in  opposition  to 
"numquam"  shows  that  the  jurisconsult  attached  no 
unusual  importance  to  his  principle.  But  once  detached 
from  its  foundation  and  also,  perhaps,  with  one  of  its 
terms  slightly  corrupted,  the  maxim  "ne  imagine  natures 
veritas  adumbretur"  has  found  a  degree  of  success  to 
which  it  did  not  aspire  in  the  beginning. 

The  kobold  of  the  fiction  and  the  classical  Roman  juris- 
consults, on  the  whole,  lived  happily  together.  But  it 


§3]  THE  FICTION  393 

was  otherwise  in  the  Justinian  legislation.  The  kobold  and 
the  lawmaker  are  often  at  war,  and  as  soon  as  the  law- 
maker drives  out  the  kobold,  it  again  obtrudes  itself  upon 
him.  If  we  suppose  that  one  and  the  same  jurist  framed 
the  numerous  laws  that  we  place  under  the  name  of 
Justinian,  this  jurist  would  be  perfectly  incoherent  in  his 
ideas  upon  the  function  and  the  value  of  the  fiction ;  which 
is,  moreover,  quite  possible.  It  is  more  probable,  however, 
that  the  imperial  texts  were  framed  by  different  jurists 
who  disagreed  upon  this  particular  point  of  juridical  logic. 
The  aggressive  tone  of  certain  texts  allows  us  to  judge  that 
it  is  very  much  more  a  question  of  controversy  among 
the  living  than  of  recrimination  against  the  dead. 

In  the  Middle  Ages  the  fiction  could  not  but  gain  in 
prestige.  It  was  officially  recognized  in  the  logic  of  the 
Romanists  and  the  Canonists.  A  theologian  has  remarked 
that  the  fictions  contained  in  the  Bible  or  in  juridical  texts 
agree  exactly  with  the  ten  "predicaments"  or  "categories" 
of  Aristotle.  Thus  the  fiction,  upheld  by  the  three  most 
respected  authorities,  the  Bible,  Aristotle,  and  Justinian, 
could  not  be  condemned.  Nevertheless,  it  was  welcomed 
without  any  great  enthusiasm  and  suffered,  moreover, 
entirely  unjustifiable  restrictions.  The  two  most  im- 
portant have  followed  the  doctrine  of  the  Romanists 
through  the  centuries,  and  traces  of  them  might  be  found 
in  recent  works: 

"Two  fictions  upon  the  same  point  do  not  compete." 
"No  fiction  can  sanction  a  natural  impossibility." 

Neither  Bartolus  nor  Cujas  was  an  enemy  of  the  fiction. 
Bartolus  treats  of  it  at  length  and  nearly  always  justifies 
it,  but  his  interminable  distinctions  are  more  subtle  than 
logical.  While  devoting  less  attention  to  it,  Cujas  has  a 
better  opinion  of  it.  "  Since  in  the  matter  of  sale,  property 
is  transferred  without  formality  by  taking  for  granted  sol- 
emn deliveries  which  have  in  reality  been  dispensed  with, 


394  THE  RATIONAL  IN  LAW  [CH.XI 

why  should  it  not  be  the  same  in  the  matter  of  a 
donation?"  Cujas  seems  in  nowise  impressed  with  the 
necessity  of  restricting  the  scope  of  a  juridical  fiction. 

Heineccius  inaugurated  fiction-phobia  in  the  eighteenth 
century.  The  nineteenth  century  suffered  seriously  from 
it.  Its  evil  effects  are  still  felt  today.  It  would  be  more 
diverting  than  profitable  to  review  the  literature  which  has 
been  produced  by  this  mental  attitude!  To  finish  our 
account  we  will  allow  ourselves  a  single  example : 

How  much  ingenious  toil  has  been  spent  to  explain 
the  nature  of  a  corporation,  or  artificial  legal  person, 
without  resorting  to  fiction!  One  eminent  jurist  thought 
that  he  had  found  a  real  solution.  "  It  is  not  necessary  to 
consider  an  artificial  person  as  a  fictitious  being,"  says  he. 
"The  law  creates  it  by  robbing  natural  persons  of  a 
part  of  their  legal  personality,  with  which  it  then  rein- 
vests the  corporate  person  in  which  they  are  merged." 

A  law  which  takes  men,  robs  them  of  their  personality, 
and  reinvests  a  corporation  with  it  —  this  is  a  remarkable 
way  of  avoiding  fiction  and  sticking  to  reality!  Is  there 
indeed  some  surgeon's  office  in  real  life  where  this  bizarre 
operation  is  performed? 

§  4.  The  Procedural  Fiction.  Discussions  upon  theo- 
retic fictions  give  rise  to  laughter  and  not  to  tears.  When 
even  the  most  distinguished  minds  confuse  form  and  sub- 
stance, when  they  perform  acrobatic  feats  in  order  to 
avoid  a  form  which  does  not  please  them,  there  is  no  great 
evil  done.  Merely,  respect  for  logic  demands  our  opposi- 
tion. Very  sad,  on  the.  contrary,  would  be  the  chapter 
on  procedural  fiction  if  we  had  the  time  and  the  talent  to 
develop  it  as  it  should  be  developed.  The  procedural 
fiction  reduces  to  an  incalculable  extent  the  moral  value 
of  applied  law.  The  sincere  and  honest  men  who  have 
cursed  courts  and  juridical  science  because  of  it  would 
form  a  legion.  And  the  worst  of  it  is  that  there  is  no  one 
to  blame  for  this.  Procedural  fictions  are  made  in  order 


§4]  THE   PROCEDURAL  FICTION  395 

to  insure  regular  and  imposing  progress  instead  of  prac- 
tical justice.  And  thanks  to  it,  judicial  decision  is  able 
to  preserve  a  respectable  and  dignified  attitude.  Abstract 
justice,  honesty  and  good  faith  sometimes  pay  dear  for 
this;  but  there  is  no  way  of  making  it  otherwise.  Pro- 
cedural fictions  betray  the  eternal  weakness  of  the  law. 

Of  the  law?  Is  it  Law  alone  which  must  be  brought 
to  trial?  When  law  and  history  are  produced  at  the 
same  time,  it  is  well  known  that  the  judgments  of  history 
are  worth  no  more  than  those  of  law.  The  same  crude 
and  artificial  processes  necessary  to  put  one  in  touch 
with  reality  are  found  in  both,  concealed  in  one,  openly 
avowed  in  the  other,  but  nevertheless  identical. 

In  order  to  understand,  a  certain  degree  of  intellectual 
stability  is  needful,  and  stability  cannot  be  obtained  except 
at  the  sacrifice  of  truth.  Truth  is  in  a  state  of  perpetual 
oscillation;  its  mobility,  its  variety  is  disconcerting.  We 
cannot  grasp  it  without  falsifying  it.  It  is  by  the  aid  of 
assumptions  —  that  is  to  say  of  fictions  —  that  we  estimate 
the  value  of  the  past  and  the  present,  attributing  to 
specific  groups  of  human  beings  good  and  bad  qualities 
which  they  often  do  not  possess  at  all. 

In  order  to  apply  the  law  to  the  fact,  the  judge  ought 
to  substantiate  the  fact.  He  should  substantiate  material 
facts  often  difficult  to  establish,  and  psychological  facts 
almost  impossible  to  investigate.  Were  there  but  one 
litigation  to  be  decided  in  the  whole  course  of  his 
existence,  it  is  not  at  all  certain  that  the  most  clear- 
sighted man  could  gain  a  perfect  knowledge  of  all  the 
elements  of  the  fact  which  he  was  to  evaluate.  But, 
taking  into  consideration  the  number  of  matters  which 
pass  under  his  eyes,  the  most  conscientious  judge  can  have 
only  an  extremely  vague  knowledge  of  each  of  them.  He 
can  get  through  only  by  means  of  fictions. 

I :  The  Fiction  in  Ordinary  Proof.  Even  when  brought 
into  the  most  direct  contact  with  reality,  the  judge 


396  THE  RATIONAL  IN  LAW  [Cn.XI 

reasons  according  to  fiction.  He  recognizes  certain  human 
types,  as  well  as  certain  economical  and  social  facts.  By 
his  experience  and  by  his  reading  he  creates  for  him- 
self an  artificial  world  from  which  he  cannot  be  drawn. 
Thus  the  chief  effort  of  the  lawyer  is  to  adapt  the  facts 
to  the  schematic  conception  towards  which  the  judge  is 
inclined  and  by  which  alone  he  is  enabled  to  form  an  idea 
of  the  reality. 

Moreover,  since  the  beginning  of  the  nineteenth  cen- 
tury, the  lawmaker  seems  to  have  given  up  concerning 
himself  seriously  with  the  reality  of  facts,  especially  in 
civil  matters.  The  judiciary  organization,  the  theory  of 
proofs  and  the  procedure  of  all  modern  peoples  seem  to 
advise  the  judge  to  make  an  appearance  of  being  inter- 
ested in  the  investigation  of  the  truth  but  to  be  concerned 
with  it  fundamentally  to  only  a  very  moderate  extent. 
Let  us  take  the  French  legislation.  The  Court  of  Cassation 
should  judge  only  questions  of  law.  It  rids  itself  as  much 
as  it  can  of  all  suits  submitted  to  it,  however  flimsy  its 
pretext  that  a  question  of  fact  is  the  only  one  at  stake. 
The  sovereignty  of  the  trial  judges  in  issues  of  fact  is  its 
favorite  subterfuge.  The  sovereign  trial  judge  forms  his 
conviction  as  he  pleases  and  may  declare  himself  con- 
vinced without  saying  why.  He  may  ignore  competent 
witnesses,  interpret  writings  the  wrong  way  —  which  may 
happen  even  when  he  acts  in  good  faith  —  nevertheless  his 
decision  rests  supreme.  This  sovereign  may  be  no  more 
than  a  justice  of  the  peace.  So  much  for  judiciary 
organization. 

The  theory  of  proof  in  the  French  Civil  Code  is 
extremely  rigid  and  formalistic.  There  proof  by  wit- 
nesses is  excluded  as  far  as  possible.  The  obstacles  put 
in  the  way  of  the  disclosure  of  the  truth  are  numerous 
and  frequently  disguised.  Will  it  be  said  that  the  law- 
maker wished  to  give  preference  to  the  more  certain  and 
less  dangerous  written  proof?  That  is  correct;  but  it 


§4]  THE   PROCEDURAL  FICTION  397 

must  also  be  borne  in  mind  that  the  one  who  is  best  en- 
trenched from  the  point  of  view  of  the  written  proof  is 
the  one  who  has  foreseen  the  lawsuit  and  laid  a  trap  for 
his  adversary. 

Finally,  the  procedure  of  the  trial  is  especially  open  to 
criticism.  By  its  crude  organization  it  lends  itself  to  all 
kinds  of  fraud.  If  anyone  thinks  my  judgment  severe, 
let  him  go  back  to  the  "Style  de  la  Chambre  des  Enquetes  " 
of  the  Parliament  of  Paris,  as  it  was  applied  in  the  four- 
teenth century,  and  let  him  compare  it  with  any  modern 
procedure.  The  intelligent  minutiae  which  were  formerly 
brought  forward  in  the  investigation  of  the  truth  form  a 
striking  contrast  to  the  present-day  easy-going  methods. 
Will  it  be  said  that  experience  has  condemned  the  old 
procedure  which  was  long,  expensive  and  inclined  to  de- 
velop false  testimony;  and  that  our  modern  principles  are 
more  satisfactory  in  all  respects,  seeking  as  they  do  the 
truth  only  within  the  limits  where  its  attainment  is  prac- 
tically possible?  This  is  not  my  opinion,  but  it  matters 
little.  I  do  not  intend  to  criticize  any  person  or  any 
institution.  My  only  desire  is  to  bring  forward  into  full 
view  the  purely  fictitious  character  of  decisions  relating' 
to  "questions  of  fact,"  even  in  cases  where  the  judge  has 
entire  freedom  in  weighing  the  proof. 

II:  Presumptions.  The  lawmaker  has  so  fully  taken 
into  account  the  painful  situation  in  which  the  judge 
finds  himself  in  dealing  with  facts,  that  to  spare  him  any 
compunction,  the  lawmaker  very  often  follows  in  the  path 
of  the  fiction  himself  and  conceals  under  its  authority  a 
process  which  is  open  to  criticism  from  a  logical  point  of 
view.  This  is  the  "raison  d'etre"  of  the  legal  presump- 
tions. 

The  question  whether  or  not  legal  presumptions  are 
fictions  has  been  debated  for  centuries,  and  since  the  time 
of  Baldus  and  Jason,  the  majority  of  authors  answer  in 
the  negative.  The  fiction,  say  they,  invents  out  of  whole 


398  THE  RATIONAL  IN  LAW          [Cn.Xl 

cloth  a  fact  known  to  be  false,  while  the  presumption  is 
employed  to  decide  doubtful  questions. 

These  two  ideas  —  it  must  be  recognized  —  are  not  to  be 
identified  with  one  another,  a  fact  which  authorizes  the 
assigning  of  a  special  name  to  each  of  them.  Each  re- 
mains head  of  its  own  terminology;  let  us,  therefore, 
avoid  any  quarrel  of  words.  The  essential  point  is  to 
know  in  what  the  fiction  and  the  presumption  are  alike 
and  in  what  they  differ. 

The  presumption  does  not  state  as  true  a  fact  which  is 
known  to  be  false.  The  presumed  fact  is  a  possible,  some- 
times even  a  very  probable  fact,  and  it  is  not  therefore  a 
fictitious  one.  But  the  presumption  attaches  to  any 
given  possibility  a  degree  of  certainty  to  which  it  nor- 
mally has  no  right.  It  knowingly  gives  an  insufficient 
proof  the  value  of  a  sufficient  one.  Hence,  by  reason 
of  the  fragment  of  more  or  less  important  proof  which  it 
adds  to  the  real  proofs,  it  forms  a  work  of  the  imagination 
identical  with  the  fiction.  There  is  the  creation  of  some- 
thing that  is  false  and  is  recognized  and  presented  as  false. 

And  this  applies  to  every  kind  of  legal  presumption, 
whether  it  can  or  cannot  be  combated  with  proof  to  the 
contrary. 

Let  us  take,  for  instance,  the  responsibility  of  tenants  in 
case  of  conflagration.  A  fire  breaks  out  in  a  house  rented 
by  five  tenants,  and  it  is  not  known  where  it  started. 
Article  1734  of  the  French  Civil  Code  declares  that  each 
tenant  will  be  held  responsible  for  his  share.  It  is  scarcely 
probable,  not  to  say  impossible,  that  the  fire  started  in 
the  five  apartments  at  the  same  time.  For  the  five  dif- 
ferent possibilities,  among  which  a  choice  cannot  be 
made,  there  is  substituted  a  fictitious  fact  which  alone 
permits  of  a  solution  of  the  matter.  Everyone  has  the 
right  to  attack  the  fictitious  fact  by  certain  means  of 
proof,  but  if  this  cannot  be  done,  it  is  the  fiction  that  will 
dictate  the  solution. 


§4]  THE   PROCEDURAL  FICTION  399 

In  the  presumptions  "juris  et  de  jure,"  the  fictitious  ele- 
ments are  all  the  more  powerful,  since  they  cannot  be  com- 
bated. The  existence  or  the  non-existence  of  the  pre- 
sumed element  becomes  a  matter  of  indifference.  There- 
fore "non-existence"  is  equivalent  to  "existence,"  as  in 
every  fiction.  The  fact  that  the  "non-existence"  is  not 
certain  may  be  suggested,  but  scarcely  changes  the 
nature  of  the  reasoning,  for  it  is  this  relationship  of 
equality  established  between  the  true  and  the  false  that 
gives  the  fiction  its  unique  character. 

Let  us  take  again  the  example  of  the  Justinian  fiction  in 
regard  to  the  stipulation  the  wife  is  supposed  to  have 
made  for  the  purpose  of  controlling  the  restitution  of  her 
dowry  at  the  dissolution  of  the  marriage.  Whether  there 
had  or  had  not  been  such  a  stipulation,  the  process  of 
settlement  will  be  the  same,  and  Justinian  points  this  out 
to  us  in  detail.  It  is  evident  that  three  cases  may  present 
themselves;  the  existence  of  a  stipulation,  the  doubt  of  it, 
and  the  certainty  of  its  non-existence.  The  assimilation 
of  these  three  hypotheses  constitutes  the  fiction  in  itself. 
Zasius,  in  trying  to  establish  a  distinction  between  pre- 
sumption and  fiction,  only  established  more  firmly  the 
identity  of  their  nature: 

"To  this  Zasius  here  adds  that  suit  over  the  stipula- 
tion of  a  dowry  is  instituted  by  a  threefold  method  of 
procedure:  I,  if  a  true  stipulation  took  place,  then  the 
action  proceeds  rightly  and  from  a  true  stipulation.  II,  if 
it  is  doubtful  whether  the  stipulation  really  took  place, 
then  the  action  proceeds  from  a  presumed  stipulation :  be- 
cause the  law  presumes  that  the  stipulation  took  place. 
And  it  is  a  presumption  of  the  law  and  concerning  the  law 
against  which  proof  to  the  contrary  is  not  admitted.  And 
III,  if  it  is  certain  that  the  stipulation  did  not  take  place, 
then  the  action  proceeds  from  a  fictitious  stipulation 
when  the  law  fashions  a  stipulation  which  never  took 
place."14 


400  THE  RATIONAL  IN  LAW          [CH.XI 

SUMMARY  OF  CHAPTERS  X  AND  XI 

§  5.  Conclusion:  Role  and  Value  of  the  Rational  in  Law. 
The  law  is  very  rich  in  rational  processes  of  the  intellect. 
Analysis,  brocard,  definition,  analogy,  '  construction,' and 
fiction  do  not  exhaust  the  list ;  and  the  subject  might  eas- 
ily be  treated  more  thoroughly  and  at  greater  length 
than  we  have  treated  it.  Nevertheless  it  must  be  ac- 
knowledged that  these  various  processes  form  a  good  part 
of  juridical  technic,  and  from  them  the  whole  may  be 
judged. 

They  present  all  the  characteristics  of  reason.  They 
are  always  justifiable,  and  often  ingenious  and  subtle. 
They  indicate  forceful  and  accurate  mental  activity.  Ju- 
ridical thought  has  a  right  to  respect  and  admiration. 
One  could  not  make  too  strenuous  an  attempt  to  fathom 
its  complexity  and  variety.  In  my  opinion,  the  great 
jurisconsults  are  intellectually  the  equals  of  the  greatest 
thinkers  in  any  field  no  matter  what. 

Nevertheless,  the  expressions  "juridical  science,"  "sci- 
entific Law,"  etc.,  always  make  me  rather  uncomfortable, 
at  least,  when  these  expressions  are  used  for  the  sake  of 
convenience  and  with  no  claim  to  precision.  For  the  law 
is  nothing  but  reason;  and  reason  is  not  always  science. 
Law  is  intellectual  life,  and  the  life  of  the  most  reasonable 
man  is  not  determined  by  a  succession  of  rigid  and  scien- 
tific decisions. 

In  other  words,  not  one  of  the  processes  we  have  studied 
necessarily  imposes  itself  on  any  juridical  hypothesis 
whatever,  and  not  one  of  them  necessarily  ends  in  a  single 
strictly  determined  solution. 

This  justifies,  it  seems  to  me,  the  term  "the  rational 
and  non-logical  intellectual"  which  I  apply  to  one  of  the 
most  efficient  forces  that  has  contributed  to  the  develop- 
ment of  the  law. 


§  5  ]  SUMMARY  401 

BIBLIOGRAPHY 

HAMELIN,  L'analogie,  in  L'Annee  philosophique  (1902);  CHIDE,  La 
logique  de  1'analogie,  in  Revue  philosophique  (1908);  PAULHAN, 
Logique  de  la  contradiction  (1910);  RABIER,  Logique;  COURNOT, 
Essais  sur  le  fondement  de  nos  connaissances,  p.  93. 

WINDSCHEID,  Lehrbuch  des  Pandektenrechts,  I,  §  29,  §  67;  FATTA 
E  BENSA,  Diritto  delle  Pandette  de  WINDSCHEID,  pp.  1-113;  SCHAR- 
LACH  u.  ZITELMANN,  in  Arch.  f.  civ.  Praxis,  LXII,  435;  LXVI,  348; 
HOLDER,  Pandekten,  I,  71;  REGELSBERGER,  Pandekten,  I,  155; 
ENDEMANN,  Einfuhrung  in  das  Studium  des  biirgerl.  Gesetz,  I,  p.  45. 

HEINECCIUS,  in  Puffendorff,  bk.  I,  ch.  XVII;  BARBEYRAC,  Sur 
Puffendorff,  bk.  I,  ch.  XVII,  bk.  V,  ch.  XII,  §  12. 

THOMASIUS,  Cautelae  circa  praecognita  jurisprudentise;  MILL, 
System  of  Logic,  bk.  Ill,  ch.  XX;  Of  Analogy. 

SPASSOIEWITCH,  Analogic  et  interpretation,  pp.  123  ff.;  ELTZ- 
BACHER,  Ueber  Rechtsbegriffe;  SALOMON,  Das  Problem  der  Reichts- 
begriffe. 

DEMELIUS,  Die  Rechtsfiktionen  in  ihrer  geschichtlichen  und  dog- 
matischen  Bedeutung;  LEONHARD,  In-wie  weit  gibt  es  nach  den 
Vorschriften  der  deutschen  Civilprocessordnung  Fictionen;  KAR- 
LOWA,  Romische  Rechtsgeschichte,  I,  §  61;  Authors  already  cited  in 
the  preceding  chapter. 


CHAPTER  XII 

THE  HIGHER   ORDERS   OF  JURIDICAL 
THOUGHT 

§1.  INTRODUCTION.  — §2.  PRINCIPAL  SOURCES  OP  CONFUSION 
AMONG  LEGAL  THEORISTS:  I.  LAW  AND  LEGAL  INSTITUTIONS; 
II.  POSITIVE  LAW,  DESIRABLE  LAW,  THE  JUST,  THE  GOOD;  III,  GEN- 
ERAL LAW,  JURIDICAL  CATEGORIES  AND  CONSTRUCTIONS. 

§  1.  Introduction.  We  have  laid  stress  upon  the  lower 
forms  of  juridical  thought.  In  everyday  life,  the  mys- 
tical and  the  simple  rational  are  the  most  in  evidence  and 
perhaps  even  the  best  ordered.  But  to  stop  here  would 
be  to  disregard  the  Law  and  its  history.  In  juridical  de- 
velopment, intellectual  forces  of  a  much  higher  nature 
have  been  at  work.  These  it  is  impossible  to  neglect. 

It  is  certain  in  the  first  place  that,  ever  since  there 
have  been  thinking  men,  law  has  been  in  continual  con- 
tact with  religion,  morality  and  philosophy.  Every  sys- 
tem of  philosophy  has  apprehended  juridical  phenomena 
after  its  own  fashion,  and  every  jurist  of  any  importance 
has  had  his  own  conception  of  the  world.  From  one  di- 
rection or  another,  the  greatest  minds  of  the  human  race 
have  been  brought  to  bear  upon  the  law.  It  is  impossible 
that  nothing  should  remain  of  this  colossal  labor  which  is 
worthy  of  our  deepest  respect. 

There  has  certainly  resulted  from  it  an  immense  body 
of  literature  to  which  a  great  number  of  different  civiliza- 
tions have  contributed.  Works  treating  of  the  philosophy 
of  the  law  under  one  form  or  another  are  always  deserv- 
ing of  great  attention  whether  they  emanate  from  theo- 
logians, philosophers  or  jurists.  The  Law  itself  in  its  con- 

402 


§  1  ]  INTRODUCTION  403 

crete  elements  bears  the  forcible  imprint  of  this  learned 
and  systematic  labor. 

Philosophy  is  not  to  be  found  entirely  in  the  thoughts 
of  philosophers.  All  human  beings  —  or  nearly  all,  at 
least  —  can  rise  to  the  most  general  and  abstract  concep- 
tions. Thus  lawmakers,  practitioners,  and  publicists,  who 
deal  by  preference  with  the  lower  forms  of  thought,  may 
more  or  less  frequently,  through  their  own  efforts  or  some 
outside  influence,  come  in  contact  with  the  most  delicate 
elements  of  juridical  thought. 

Nevertheless,  Legal  Philosophy  is  at  the  present  mo- 
ment, and  has  been  for  a  long  time,  universally  decried, 
nay,  more  frankly,  despised  by  the  very  large  majority  of 
jurists  and  philosophers.  It  is  looked  upon  as  a  form  of 
empty  phraseology,  often  insipid  and  devoid  of  interest. 
It  must  be  acknowledged  that  this  reproach  is  often  jus- 
tified. We  have  no  intention  of  joining  in  this  deprecia- 
tion, nor  of  even  vaguely  criticizing  the  various  systems 
of  legal  philosophy.  Acting  in  the  capacity  of  legal  his- 
torian, we  are  brought  face  to  face  with  an  important 
and  inevitable  problem:  i.e.,  What  is  the  character  of  the 
philosophic  thoughts  which  have  had  an  influence  in  the 
formation  of  the  law?  We  must  know  how  to  approach 
this  problem. 

What  ought  the  law  to  have  gained  by  this  continual 
contact  with  philosophy?  It  ought,  above  all  else,  to 
have  gained  a  better  understanding  of  itself.  It  ought  to 
have  disentangled  the  various  elements  of  which  it  is  con- 
stituted, determined  their  nature  and  estimated  their 
logical  value.  Yet  the  law  is  in  almost  complete  igno- 
rance as  regards  itself.  It  is  composed  of  ideas  which 
are,  from  a  philosophical  point  of  view,  diverse  by  nature, 
and  every  system  of  legal  philosophy  mixes  them  into  an 
incoherent  mass.  So  that  the  situation  presents  itself  in 
the  following  form : 

From  the  point  of  view  of  system,  works  of  juridical 


404        HIGHER  JURIDICAL  THOUGHT     [CH.XII 

philosophy  are  characterized  by  the  wildest  confusion  in 
the  essential  ideas;  so  much  so,  in  fact,  that  no  system,  in 
so  far  as  it  is  a  system,  may  really  be  classed  among  the 
higher  forms  of  thought;  accordingly  they  may  all  be 
neglected  here. 

But  every  isolated  thought  contained  in  this  intellectual 
chaos  preserves  its  own  peculiar  nature,  and  it  is  this  in 
itself  which  it  behooves  us  to  evaluate.  The  fact  that  no 
one  has  been  able  to  characterize  these  thoughts,  or  to 
turn  them  to  account,  does  not  change  their  value.  Very 
often  true  and  deep  ideas  are  emitted  by  minds  incapable 
of  making  use  of  them.  They  are  none  the  less  true  and 
deep  although  not  utilized.  To  take  a  survey  of  moral 
and  political  theories  and  of  natural  law  through  the 
ages  would  certainly  be  very  interesting,  but  it  would 
serve  no  purpose  in  the  understanding  of  juridical  thought. 
For  these  theories,  in  so  far  as  they  are  theories,  have 
no  truly  philosophical  interest.  To  unfold  ideas  without 
being  able  to  appraise  them,  without  a  criterion  to  aid  in 
the  understanding  of  their  scope,  the  degree  of  authority 
which  they  may  claim,  or  the  relationship  which  they 
have  with  one  another,  would  be  labor  in  vain. 

In  order  to  get  a  standpoint  in  this  chaos  of  juridical 
thoughts,  analysis  alone,  and  the  most  rigorous  analysis, 
is  necessary.  We  make  no  pretence  of  taking  up  this 
analysis  at  its  beginning,  for  it  was  started  a  long  time 
ago,  nor  of  following  it  to  its  conclusion,  for  undoubtedly 
our  labor  will  still  remain  very  crude.  But  those  who 
might  wish  to  undertake  it  in  whole  or  in  part  would  cer- 
tainly perform  a  work  which  would  not  be  unwelcome  to 
us  if  they  could  instil  into  it  more  subtlety  and  logic. 

§  2.  Principal  Sources  of  Confusion  among  Legal  The- 
orists. 

I:  Law  and  Legal  Institutions.  It  is  generally  un- 
derstood that  "law"  and  "legal  institutions"  are  not 
synonymous.  But  the  distinction  between  the  two  is  not 


§2]  SOURCES  OF  CONFUSION  405 

nice  enough  to  bring  out  all  that  it  is  capable  of  furnish- 
ing. And  —  what  is  more  serious  —  when  one  emits  a  gen- 
eral theory  on  a  matter  of  juridical  technic,  philosophy 
or  history,  there  is  nearly  always  an  omission  of  any  indi- 
cation as  to  whether  it  is  applicable  to  the  "law"  or  to 
"legal  institutions." 

In  its  positive  form,  the  law  (Droit)  is  the  ensemble  of 
the  rules  formulated  by  laws  (loi) ;  the  institution  is  the 
ensemble  of  the  processes  by  which  a  social  aim,  or,  if  it 
is  preferred,  the  form  of  social  relations,  is  realized.  An 
institution  becomes  juridical  when  it  is  submitted  to  the 
basic  rules  and  the  technic  elaborated  by  law.  Sale  is  a 
juridical  institution,  while  an  invitation  to  dinner  is  not. 

Institutions  are  older  than  the  law.  Animals  have  in- 
stitutions but  not  law.  Primitive  peoples  develop  very 
complex  social  life  almost  without  the  aid  of  law.  Primi- 
tive Roman  law  had  not,  strictly  speaking,  any  family 
law;  and  its  law  of  contracts  admitted  institutions  of  com- 
mercial life  only  with  many  restrictions  and  reserva- 
tions. 

Institutions  enter  and  depart  from  the  juridical  domain 
according  to  circumstances.  The  law  may  permeate  them 
more  or  less  thoroughly,  according  to  the  epoch  and  civ- 
ilization. Thus  marriage  has  been  regulated  by  laws  to  a 
very  unequal  extent.  The  details  of  conjugal  life  give,  in 
some  environments,  occasion  for  suits  which  judges  would 
refuse  to  recognize  elsewhere. 

Even  if  an  institution  may  be  completely  analyzed 
into  juridical  dispositions,  it  preserves  its  independence 
throughout.  No  matter  how  close  the  union  may  be, 
such  a  separation  is  always  possible. 

Law  and  institutions  have  their  cause  and  their  essence 
in  psychological  phenomena  which  in  nowise  resemble 
each  other.  The  same  principles  cannot  be  used  to  ex- 
plain the  history  and  nature  of  the  two.  A  fundamental 
distinction  must  be  made  to  avoid  confusion. 


406         HIGHER  JURIDICAL  THOUGHT    [Cn.XII 

II:  Positive  Law,  Desirable  Law,  the  Just,  the  Good.  It 
may  seem  useless  to  draw  attention  to  the  distinction, 
which  should  be  made  by  anyone  who  studies  law  from 
no  matter  what  point  of  view,  between  positive  and  de- 
sirable law.  Confusion  between  "pointing  out  what  is," 
and  "discussing  what  ought  to  be"  would  not  seem  to  be 
within  the  range  of  possibility  except  by  unusually  dull 
minds.  Everybody  recognizes  in  principle  that  this  dis- 
tinction is  well  grounded;  but  in  the  course  of  a  long  ex- 
position, it  sometimes  happens  that  an  author  changes  his 
point  of  view  without  warning.  Hence,  most  deplorable 
obscurity  arises.  Those  who  insist  that  these  two  orders 
of  ideas  should  not  be  mixed  at  random  are  right. 

In  order  to  give  an  accurate  meaning  to  the  expression 
"desirable  law"  or  its  equivalent,  it  is  indispensable  to 
lay  down  certain  delicate  and  important  distinctions. 
"Desirable  Law"  may  be  defined  as  the  ensemble  of  ju- 
ridical dispositions  upon  any  specified  subject,  which 
under  any  specified  circumstances,  it  seems  expedient  to 
establish.  The  word  "expedient"  is,  without  doubt,  far 
from  being  clear.  It  is  vague  and  obscure  because  the 
idea  which  it  represents  is  vague  and  obscure.  " Politics" 
might  be  called  the  search  for  desirable  laws,  and  a  "poli- 
tician" one  who  devotes  himself  to  this  search.  The 
politician  asks  himself  whether  it  is  expedient  to  estab- 
lish new  or  to  abolish  old  laws.  However  complex  and 
arbitrary  his  labor,  its  various  phases  may,  nevertheless, 
be  analyzed. 

The  politician  should,  in  the  first  place,  combine  the 
elements  of  decision,  and,  in  the  second  place,  make  a 
decision. 

(1)  Elements  of  Decision.  The  elements  of  a  decision 
are,  from  the  philosophical  point  of  view,  of  a  very  varied 
nature,  but  they  may  be  classed  in  two  groups. 

(a)  An  investigation  into  the  moral  or  material  conse- 
quences which  should  result  from  a  law. 


|2]  SOURCES  OF  CONFUSION  407 

(b)  An  examination  of  the  law  and  its  consequences 
according  to  the  principles  of  what  is  good  and  just. 

(a)  An  investigation  into  the  effects  of  laws  could 
end,  in  our  times,  in  but  very  uncertain  results.     The 
combined  efforts  of  all  the  social  sciences  brought  to  a 
state  of  perfection  could  alone  promise  us  any  foresight 
into  the  future.     Some  of  these  social  sciences  (political 
economy,  statistics,  history,  etc.)  have  attained  a  certain 
degree  of  development ;  others  are  scarcely  outlined,  while 
others  still  are  completely  unknown  to  us. 

It  is  very  possible  that  humanity  will  disappear  from 
the  face  of  the  earth  before  it  accomplishes  the  colossal 
task  which  remains  to  be  accomplished  in  this  direction. 
But  it  may  be  affirmed  that  theoretically  the  knowledge 
of  the  moral  and  material  effects  of  laws  may  be  attained 
definitely  and  completely  by  the  use  of  sciences  which  are 
exclusively  positive.  The  difficulty  lies  solely  in  the  com- 
plexity of  the  problem  and  not  in  its  nature.  It  ought  to 
be  solved  by  the  use  of  positive  and  experimental  meth- 
ods. It  is  therefore  scientific  in  the  strictest  sense  of  the 
word. 

(b)  Of  quite  a  different  nature  is  the  examination  of 
the  law  and  its  consequences  according  to  the  principles 
of  the  Good  and  the  Just.     For  the  Good  and  the  Just 
have  no  positive  existence,  being  in  the  eyes  of  some,  sim- 
ply creations  of  the  human  brain,  while  for  others,  they 
are  realities  higher  than  man  himself.     Since  no  positive 
method  can  convince  either  side  of  error,  the  solution  to 
be  applied  to  the  problem  of  justice  will  always  remain 
hypothetical.     It  is  a  metaphysical  question  which  we 
shall  never  settle  with   certainty.     Any   truth   we  can 
draw  from  it  will  always  remain  a  metaphysical  truth. 

Those  of  a  positivistic  mind  can  claim  that  an  exami- 
nation of  laws  according  to  metaphysical  data  could  be 
simply  and  absolutely  abolished.  But  as  a  matter  of  fact 
human  nature  needs,  and  will  always  need,  such  ideas  as 


408         HIGHER  JURIDICAL  THOUGHT    [Cn.  XII 

a  basis  of  its  social  logic.  Those  who  believe  in  the 
purely  subjective  nature  of  the  good  and  the  just  are  no 
less  obliged  to  give  them  an  artificial  objectivity  through 
fiction,  for  without  that  any  estimation  of  the  value  of 
laws  would  be  absolutely  impossible.  Fictions  or  reali- 
ties, the  good  and  the  just  will  always  be  studied  by  the 
same  method,  very  far  removed  from  the  positivistic 
methods. 

(2)  Decision.  When  the  politician  has  combined  the 
elements  of  decision  it  remains  for  him  to  make  a  deci- 
sion or  formulate  a  judgment.  He  will  say,  "It  is  neces- 
sary," "It  is  expedient,"  or  "It  is  desirable."  Logically, 
a  decision  cannot  be  the  direct  result  of  even  a  perfect 
knowledge  of  the  elements.  Practically,  if  all  the  ele- 
ments of  the  decision  are  favorable,  the  decision  will  seem 
to  force  itself.  But  this  is  only  an  expression;  a  deci- 
sion can  never  be  logically  forced  by  the  verification  of 
facts.  Intellectual  facts  and  volitional  facts  are  related 
in  fact  but  not  in  logic.  Besides,  the  examination  of  the 
elements  of  decision  will  nearly  always  bring  to  light  so 
called  advantages  and  disadvantages.  In  such  a  case,  no 
intellectual  labor  can  justify  a  choice.  A  law  will  be  un- 
just but  useful;  just  but  dangerous;  there  is  no  discipline 
which  could  inform  us  whether  we  must  give  preference 
to  the  just  or  the  useful  when  both  are  equally  involved; 
there  is  none  which  could  show  us  what  degree  of  justice 
or  utility  ought  to  control  in  case  of  opposition  between 
the  two.  The  art  of  decision  will  always  remain  outside 
of  all  positive  logic  as  well  as  of  metaphysics. 

Thus  it  is  seen  that  in  the  fashioning  of  desirable  law, 
three  psychological  processes  are  combined;  the  first,  of  a 
positive  and  experimental  nature;  the  second,  metaphysi- 
cal; the  third,  foreign  to  the  strictly  intellectual  domain. 

Ill:  General  Law.  Juridical  Categories,  and  Juridical 
or  Philosophical  'Constructions.'  Works  on  pure  and  ab- 
stract law  and  on  juridical  dogmatics  comprise  a  rich 


§2]  SOURCES  OF  CONFUSION  409 

body  of  literature,  a  legitimate  resource  in  the  investiga- 
tion of  the  highest  forms  of  juridical  thought.  Do  not 
these  works  in  themselves  constitute  the  science  and,  up 
to  a  certain  point,  the  philosophy  of  law?  Undoubtedly. 
But  whatever  may  be  their  profundity  or  their  scope,  it 
is  very  seldom  that  works  of  this  nature  can  rightly  repel 
the  charge  of  confusion  due  to  lack  of  analysis,  not  per- 
haps in  accomplishing  the  task  itself,  but  in  pointing  out 
the  task  which  they  propose  to  accomplish. 

In  the  domain  of  juridical  theory,  there  is  room  for 
many  enterprises  of  a  varied  nature  and  purpose;  every 
one  may  exploit  his  own  field  in  his  own  way.  Still  it  is 
necessary  to  know  what  each  one  is  trying  to  do  and 
what  harvest  he  hopes  to  reap.  Without  this,  how  can 
one  judge  whether  he  is  right  or  wrong  in  what  he  affirms 
or  denies? 

(1)  Motives  of  Study.  The  philosophic  nature  of  jurid- 
ical thought  may  be  studied  with  a  great  many  different 
motives.  Some  wish  to  understand  it  for  its  own  sake; 
others  for  the  purpose  of  influencing  the  interpretation, 
creation  and  application  of  positive  law.  Both  may  con- 
scientiously follow  identically  the  same  methods  in  their 
labors;  provided,  however,  that  the  practitioner  of  the 
future  does  not  happen  to  mix  his  practical  desires  with 
objective  and  disinterested  study,  —  does  not  arise  from 
his  seat  every  time  that  he  supposes  a  philosophic  truth 
may  be  of  use  to  him.  If  he  mixes  the  preoccupations  of 
his  profession  with  his  study  of  pure  science,  he  will  no 
longer  have  the  right  to  claim  to  practice  his  profession 
according  to  the  principles  of  pure  science.  This  is  why 
"a  scientific  elaboration  of  positive  law"  supposes,  in  the 
first  place,  a  scientific  knowledge  of  law,  after  which  may 
come  a  scientific  study  of  the  "elaboration."  But  a 
study  of  the  elaboration  of  the  law  cannot  be  considered  a 
primary  science.  For  that  would  lead  perforce  to  the 
elimination  of  everything  in  the  philosophic  nature  of  law 


410        HIGHER  JURIDICAL  THOUGHT     [Cn.XII 

that  did  not  seem  of  possible  practical  use  in  its  elabora- 
tion. He  whose  ambition  is  limited  to  becoming  a  notary 
or  a  deputy  sheriff  has  a  perfect  right  to  choose  in  his  ju- 
ridical studies  what  best  suits  his  profession.  But  he 
cannot  pretend  to  rise  to  scientific  law.  The  situation  is 
proportionately  the  same  for  him  who  tries  to  fashion  a 
theory  of  "legal  elaboration"  without  knowing  the  law 
itself. 

The  author  with  whom  we  are  dealing  and  whom  we 
appear  to  be  criticizing  directly,  when  in  reality  we  have 
many  others  in  mind,  has  done  much  toward  the  under- 
standing of  the  law  itself  as  well  as  for  the  technic  of  "the 
elaboration  of  the  law."  But  the  high  value  and  univer- 
sal renown  of  his  work  induces  us  to  take  it  as  a  sample 
of  the  insufficiency  of  the  power  of  analysis  in  modern 
juridical  science  among  the  most  profound  minds  and  those 
most  desirous  of  penetrating  deeply  into  the  philosophic 
essence  of  juridical  phenomena. 

Let  us  admit  that  there  is  a  philosophic  reply  to  the 
question  "What  is  the  most  perfect  method  for  the  elab- 
oration of  law?"  but  this  reply  can  be  obtained  only  by 
him  who  has  examined  fundamentally  the  elemental  ques- 
tion, "What  is  law?"  One  cannot  logically  approach  the 
former  before  exhausting  the  latter. 

(2)  The  Science  of  General  and  that  of  Necessary  Ele- 
ments. By  reserving  the  expression  "pure  law"  or 
"positive  legal  philosophy"  for  the  science  which  confines 
itself  to  the  investigation  of  what  law  is,  there  is  at 
once  secured  a  basis  for  labor  which  is  more  exact  than 
those  in  general  use.  But  much  confusion  is  still  possible 
unless  there  can  be  still  further  precision,  for  works  differ- 
ing in  method  and  scope  cannot  be  brought  together 
under  the  same  head. 

To  combine  the  possible  maximum  of  juridical  data  by 
borrowing  from  every  age  and  every  civilization,  and  to 
extract  therefrom  the  common  elements,  —  to  work  thus 


§2]  SOURCES  OF  CONFUSION  411 

by  means  of  observation,  abstraction  and  generalization, 
is  a  method  as  solid  as  it  is  fruitful.  It  may  be  called  the 
method  of  "general  positive  law,"  for  it  condenses  all 
that  is  general  in  positive  law.  It  sorts  out  the  accidental 
and  the  permanent,  the  variable  and  the  constant.  Its 
results  have  a  positive  and  experimental  value  of  the 
highest  order.  They  constitute  the  science  of  "general 
elements"  of  the  law. 

The  science  of  "general  elements"  should  not  be  con- 
fused with  that  of  "necessary  elements."  Now,  certain 
thinkers  affirm  that  there  are  in  the  law  "necessary  ele- 
ments." If  there  are  such,  it  is  behooving  to  erect  an  en- 
tirely new  science.  Up  to  the  present  time,  no  one  has 
concerned  himself  with  anything  except  what  was  com- 
mon to  every  juridical  system  of  the  past  or  present ;  now 
it  is  a  question  of  discovering  what  is  inevitable  in  every 
possible  or  imaginable  juridical  system.  Between  the  two 
sciences  there  is  a  deep  gulf  fixed;  for  there  is  indeed  a 
deep  gulf  between  what  has  always  existed  and  what 
cannot  but  exist,  between  the  "general"  and  the  "neces- 
sary." 

In  studying  the  "necessary,"  the  experimental  and  in- 
ductive method  must  be  completely  abandoned;  neither 
can  observation,  abstraction,  nor  generalization  be  of 
any  use,  no  matter  how  perfect  or  how  exhaustive  they 
may  be.  What  has  never  been  a  reality  since  the  world 
began  may  become  a  reality  tomorrow,  and,  however 
minutely  the  past  may  be  studied,  one  cannot  find  in  the 
things  which  have  there  become  realized  any  indication 
as  to  the  possibilities  and  impossibilities  of  the  future. 
The  necessity  of  a  juridical  idea,  —  the  impossibility  of  its 
contrary,  cannot  result  from  experience.  Its  proof  must 
be  sought  in  different  directions. 

(3)  Threefold  Nature  of  Juridical  Necessity.  The  neces- 
sity of  a  juridical  idea  may  be  of  a  psychological  nature. 
The  conformation  of  the  human  brain  creates  inescapable, 


412          HIGHER  JURIDICAL  THOUGHT    [Cn.XII 

i.e.,  necessary  modes  of  thinking  among  all  men;  so  that 
one  may  conceive  of  certain  social  principles  which  are 
imposed  by  the  fact  that  men  of  yesterday,  today  and  to- 
morrow will  always  be,  to  a  certain  extent,  similar  beings 
intellectually  and  emotionally.  If  one  believes  in  the 
possibility  of  determining  the  extent  of  variability  of 
which  the  human  mind  is  capable,  then  may  one  fix  the 
limits  beyond  which  it  is  impossible  to  go.  These  limits 
will  be  those  of  necessary  psychology.  For  example,  men 
obey  laws  because  these  laws  are  sanctioned  by  the  pun- 
ishment of  those  who  violate  them.  Without  such  sanc- 
tion, laws  would  hardly  have  been  obeyed  in  the  past, 
nor  would  they  be  in  this  day.  Can  one  imagine  a  state 
of  society  where  men  as  we  know  them  would  observe  the 
restrictions  laid  down  by  the  lawmaker  if  disobedience  did 
not  bring  them  into  trouble?  It  may  be  assumed  that 
this  is  an  impossibility  and  that  in  order  to  make  his 
orders  respected,  the  lawmaker  will  always  be  compelled 
to  accompany  them  by  sanction.  The  contrary  may  like- 
wise be  assumed,  and  neither  of  the  two  opinions  is  ab- 
surd in  itself.  It  is  simply  a  question  of  the  appraisement 
of  man's  psychological  variability.  This  is  the  case  with 
the  calculating  horses.  When  the  claim  was  made  that 
certain  horses  were,  through  education,  capable  of  ex- 
tracting square  roots  and  using  logarithms,  many  minds 
were  quite  certain  in  advance  that  it  was  simply  a  mat- 
ter of  trickery.  And  rightly.  The  psychology  of  the 
horse  has  not  been  described  scientifically,  nor  the  power 
of  his  intellectual  variability  measured.  Nevertheless  it 
is  perfectly  legitimate  to  fix,  by  approximate  estimation, 
the  limits  beyond  which  the  intelligence  of  the  horse  can- 
not pass.  What  is  true  of  the  horse  is  true  of  man.  Such 
is  the  nature  of  the  psychological  necessity  which  is  very 
often  invoked  implicitly  or  explicitly  in  legal  philosophy. 
The  deductive  necessity  which  is  likewise  frequently 
invoked  is  in  nowise  similar.  Its  nature  is  purely  artifi- 


$2J  SOURCES  OF  CONFUSION  413 

cial.  When  an  investigation  is  made  of  the  consequences 
resulting  from  a  principle  propounded  as  certain,  it  is 
based  upon  deductive  necessity.  Given  a  definition  of 
law  in  which  the  idea  of  sanction  is  implicitly  or  explicitly 
contained,  and  by  virtue  of  this  definition  the  law  and  the 
sanction  will  always  remain  indissolubly  connected.  Thus 
for  those  who  consider  sanction  as  the  specific  difference 
between  law  and  morality,  it  is  absolutely  certain  there 
will  never  be  a  law  void  of  sanction.  Whatever  transfor- 
mations may  take  place  in  the  human  mind,  this  will  al- 
ways be  so.  If  the  day  ever  comes  when  men  obey  laws 
without  constraint  and  simply  for  pleasure,  and  when 
tribunals,  policemen,  and  prisons  become  absolutely  use- 
less, there  will  no  longer  be  sanction,  but  neither  will 
there  be  law,  and  the  body  of  rules  to  which  the  citizens 
of  a  state  or  community  will  submit  will  be  something 
essentially  new  to  which  a  new  name  will  have  to  be 
given.  We  are  here  confronting  deductive  necessity. 

Finally,  it  may  be  claimed  that  certain  elements  of  the 
law  have  a  categorical  necessity,  that  is,  they  are  of  the 
same  nature  as  are  the  forms  of  knowledge  to  which  Kant 
has  given  the  name  categories,  such  as  quantity,  quality, 
and  relation.  These  forms  of  thought  exist  even  before 
we  have  any  knowledge  of  them  and  apart  from  this 
knowledge.  These  are  "a  priori"  truths,  related  to 
mathematical  truths.  From  this  point  of  view,  it 
may  be  maintained  that  the  idea  of  "sanction"  is  an 
element  of  the  idea  of  "law,"  in  the  same  way  that 
"unity"  and  "plurality"  are  contained  in  the  category 
"quantity." 

The  three  forms  of  necessity,  (a)  psychological,  (b)  de- 
ductive and  (c)  categorical,  do  not  exclude  one  another. 
It  is  possible  for  one  and  the  same  legal  principle  to  be 
necessary  from  this  triple  point  of  view.  But  it  is  advis- 
able that  a  very  clear  distinction  be  made  between  the 
three  ideas. 


414        HIGHER  JURIDICAL  THOUGHT     [Cn.XIl 

Are  there  general  and  are  there  necessary  elements  of 
the  law?  We  shall  study  this  question  in  the  next  chap- 
ter. If  there  are  such  elements,  it  will  be  a  task  equally 
urgent  and  delicate  to  separate  them  from  juridical  and 
philosophical  constructions  which  could  never  be  either 
general  or  necessary. 

(4)  Juridical  or  Philosophical  Constructions.  We  have 
already  spoken  of  juridical  constructions.1  Nevertheless, 
it  is  expedient  to  return  to  the  subject.  For  if  modern 
science  has  a  fondness  for  the  juridical  construction,  an- 
cient philosophy  of  law  was  partial  to  philosophical  con- 
structions. Both  seem  to  misapprehend  completely  the 
nature  of  constructions. 

What  is  a  juridical  or  philosophical  construction?  The 
expression  "construction"  in  itself  indicates  its  nature 
wonderfully  well.  It  brings  together  materials  foreign  to 
one  another  and  taken  from  every  direction;  these  it 
trims,  arranges  and  joins  together  according  to  an  arbi- 
trary plan.  With  these  given  materials,  it  can  build 
many  very  different  edifices,  after  an  infinite  variety  of 
plans. 

Any  particular  stone  may  quite  as  well  take  its  place 
at  the  base  or  at  the  summit  of  the  edifice.  A  construc- 
tion may  be  elegant  and  symmetrical  or  the  opposite.  It 
is  always  legitimate.  But  it  is  never  false  or  true,  since 
it  is  a  work  of  the  imagination  and  should  always  be  pre- 
sented as  such. 

Again  a  juridical  construction  might  be  compared  to  a 
game  of  cards.  There  are  artificial  and  conventional 
combinations  which  may  be  modified  "ad  infinitum,"  and 
they  are  all  equally  legitimate.  There  are  games  that  are 
more  or  less  simple  or  complicated,  more  or  less  amusing 
or  tiresome.  There  are  none  at  all  that  are  true  or  false. 
It  is  not  easy  to  invent  a  new  game  that  is  amusing, 

l\Ante,  Chap.  XI,  |4,  where  the  peculiar  Continental  meaning  of  this  word 
is  explained  in  a  footnote.  —  ED.] 


§2]  SOURCES  OF  CONFUSION  415 

just  as  it  is  not  easy  to  imagine  a  pleasing  construction. 
The  two  mental  operations  are  very  nearly  identical. 

Construction  is  indispensable  to  the  human  mind.  It 
gives  an  indispensable  harmony  to  the  concrete  disposi- 
tions of  laws,  and  fashions  out  of  the  scattered  fragments 
a  work  that  is  often  grandiose,  and  nearly  always  pleas- 
ant to  behold.  Philosophical  construction  is  the  only 
intellectual  labor  which  gives  man  complete  satisfaction, 
that  is,  happiness  or  consolation.  There  would  be  no 
crime  worse  than  to  depreciate  its  value.  Everyone  cre- 
ates for  himself  at  every  instant  a  synthesis  of  society 
and  of  the  universe ;  into  this  he  inserts  his  own  ideas  and 
tastes,  and  justifies,  and  at  need  glorifies,  all  of  his  own  acts. 
These  general  systematizations,  these  syntheses  of  moral 
existence,  these  "Weltanschauungen,"  may  be  morally 
or  socially  of  a  higher  or  a  lower  order,  logically  they  are 
all  equally  valued.  The  philosopher,  the  artist,  the  priest, 
the  banker,  the  bond-holder,  the  beggar,  and  the  slave, 
all  toil  in  the  same  way  to  fashion  for  themselves  the  uni- 
verse which  is  necessary  to  them,  one  with  which  they 
can  harmonize  their  existence.  Each  of  these  construc- 
tions is  of  service  to  him  who  is  its  architect.  It  would 
be  dangerous  to  give  to  anyone  of  them  a  general  value 
and  attribute  to  it  an  objective  character  to  which  it  has 
no  claim  of  any  kind. 


SCIENTIFIC  LAW,   OR   "PURE  LAW" 

81.  INTRODUCTION.  — §2.  EXPERIMENTAL  TRUTH  IN  JURID- 
ICAL LIFE:  I.  TERMINOLOGY;  II.  MECHANISM;  III,  OBSERVATION; 

IV,  JURIDICAL  AND   HISTORICAL  OBSERVATION;   V,  EXPERIENCE 
AND  JURIDICAL  TRUTHS;  VI,  EXPERIMENTAL  METHOD  AND  THE 
LAW'S    DEVELOPMENT.  — §3.    JURIDICAL    CATEGORIES:     I.    CATE- 
GORICAL IDEAS  IN  JURIDICAL  LITERATURE;  II,  JURIDICAL  CATE- 
GORIES AND  THE  PROBLEM  OF  KNOWLEDGE;  III,  THE  FIRST  ELE- 
MENTS OF  LAW;  IV,  DELIMITATION  OF  JURIDICAL  CATEGORIES; 

V,  ROLE  OF  THE   CATEGORICAL  IN  JURIDICAL  LIFE.  — §4.  PURE 
LEGAL  SCIENCE,  OR  THE  SCIENCE  OF  POSSIBLE  SOLUTIONS. 

§  1.  Introduction.  Under  the  term  "pure  law"  we 
shall  range  the  diverse  efforts  which  have  been  made  to 
arrive  at  a  knowledge  of  the  law  by  strictly  logical 
processes.  It  is  an  expression  that  has  been  used  in  vari- 
ous senses;  and  since  it  has  not  yet  any  precise  meaning 
definitely  attached  to  it  by  usage,  we  may  disregard  the 
terminology  of  others. 

First  of  all  it  behooves  us  to  state  definitely  what  we 
wish  to  ask  of  the  study  of  works  on  pure  law.  We  lay 
down  for  ourselves  one  question  and  one  only.  In  the 
domain  of  juridical  thought  are  there  and  have  there  al- 
ways been  elements  which  are  strictly  logical,  and  what  is 
their  nature  ? 

Accordingly:  (a)  We  are  making  no  criticism  of  any 
system,  author  or  work.  We  are  not  asking  ourselves  at 
all  which  of  the  thinkers  who  have  worked  in  law  from 
the  logical  point  of  view  have  succeeded  best  in  conduct- 
ing their  labors  to  the  point  where  they  ought  logically  to 
lead. 

(b)  We  shall  consider  the  thoughts  in  themselves  inde- 
pendently of  the  system  which  comprises  them,  and  the 

416 


§2]         EXPERIMENTAL  LEGAL  TRUTH         417 

methods  in  themselves  apart  from  the  results  which  they 
have  attained.  It  matters  little  to  us  whether  a  logical 
thought  stands  alone  in  the  midst  of  errors  or  a  good 
method  has  been  wrongly  employed. 

(c)  Our  task  will  not  be  that  of  enumerating  within 
limitations  everything  in  the  law  which  might  be  called 
logical  or  scientific;  but  of  explaining  the  most  important 
types  which  might  be  contrasted  with  the  lower  forms  of 
intellectual  and  the  simple  forms  of  rational  thought. 

§  2.  Experimental  Truth  in  Juridical  Life.  In  many 
fields,  the  experimental  method  has  surpassed  all  hopes. 
For  the  concrete  and  physical  sciences  it  is  the  method 
"par  excellence."  In  the  sciences  which  affect  man  very 
closely,  in  linguistics  and  even  in  psychology,  it  has  fur- 
nished the  most  brilliant  and  substantial  results.  There 
is  accordingly  nothing  more  natural  and  legitimate  than 
to  adapt  it  as  fully  as  possible  to  every  social  science, 
especially  to  the  study  of  law. 

Of  course,  this  has  always  been  done  more  or  less.  The 
most  scholastic  jurists  have,  at  times,  examined  existing 
realities  or  historical  precedents  in  order  to  decide  some 
question  of  law.  Those  who  have  seen  a  great  deal,  re- 
tained a  great  deal  and  know  how  to  derive  the  most  ex- 
perience from,  life,  have  always  been  appreciated.  There- 
fore old  men  have  nearly  always  been  preferred  as  judges. 
But  this  experience  of  age  lacks  continuity  and  precision, 
fluctuates  at  random,  and  is  seldom  able  to  create  any- 
thing of  substantial  value.  Can  the  experimental  method 
be  employed  strictly  and  accurately  in  the  elaboration  of 
the  law?  Can  truths  that  are  incontestable  be  obtained 
from  it  ?  Is  it  of  a  nature  to  remodel  the  law  and  impart 
to  it  the  characteristics  of  true  science  which,  in  my 
opinion,  it  has,  up  to  the  present  time,  always  lacked? 
Or  must  we  be  more  modest  and  confine  ourselves  to 
asking  experience  to  furnish  a  certain  amount  of  scientifi- 
cally acquired  and  relatively  indisputable  data  upon  which 


418  SCIENTIFIC  LAW  [Cn.XIII 

so-called  juridical  labor  may  be  elaborated  without  the 
law  itself  being  absorbed  by  experimental  science  and 
developed  entirely  by  it  ? 

I:  Ambiguity  of  Terminology  in  the  Experimental 
Sciences.  It  is  to  be  presumed  that  those  who  claim  to 
employ  the  experimental  method  understand  its  exact 
mechanism,  but  this  is  perhaps  not  absolutely  certain. 
A  confusion  would  be  all  the  more  excusable  since  the 
terminology  is  far  from  being  as  precise  as  one  might 
believe  it  to  be.  Thus  the  word  "experience"  may  be 
taken  in  several  different  senses;  "experimental  sciences," 
"experimental  methods,"  and  "experimentation"  are  so 
many  expressions  understood  differently  by  different 
authors. 

We  shall  call  "experimental  truth"  any  truth  obtained 
by  observation  and  verifiable  by  experience.  We  shall 
avoid  the  term  "experimentation"  because  of  its  ambigu- 
ity; its  place  will  be  supplied,  according  to  circumstances, 
by  some  other  expression,  such  as  "experimental  explora- 
tion," or  "experimental  verification." 

In  Goblot's  "Vocabulaire  Philosophique,"  the  termi- 
nology of  which  has  been  carefully  fixed,  experimentation 
is  defined  as  "a  method  of  research  into  natural  laws." 
Its  aim,  therefore,  is  to  discover  the  truth. ,  We  will  not 
cavil  over  the  word  "laws"  now;  that  will  come  later. 

Experimentation  consists  in  one  or  more  observations 
of  a  particular  nature  and  differs  from  simple  observation 
in  several  points :  (a)  The  observer,  it  is  said,  becomes  the 
experimenter  when  he  has  already  formulated  in  his  mind 
a  hypothesis  and  makes  observations  with  a  view  of  find- 
ing whether  it  is  true  or  false,  (b)  He  brings  about  the 
phenomena  he  wishes  to  observe  instead  of  concentrating 
his  attention  upon  spontaneous  facts,  (c)  Finally,  he 
directs  his  observation  according  to  certain  methods 
(method  of  agreement,  of  difference,  of  concomitant  varia- 
tions, or  of  residue). 


§2]         EXPERIMENTAL  LEGAL  TRUTH         419 

Such  experimentation  is  a  means  of  research  into  natural 
truths,  the  exploration  of  reality.  It  is  to  be  recommended 
to  scholars  as  particularly  fruitful.  But  everyone  re- 
mains his  own  master  as  regards  his  method  of  work  and 
the  means  he  employs  to  attain  the  truth.  What  gives 
experimentation  its  great  prestige,  what  secures  the  tre- 
mendous success  of  experimental  sciences,  is  not  this 
process  of  work  described  by  Bacon,  and  analyzed  still 
better  by  John  Stuart  Mill,  Claude  Bernard,  John  Her- 
schell,  and  by  Thompson  and  Tait,  but  applied  more  or 
less  in  all  times.  The  experimental  truths  beyond  dis- 
pute are  not  those  which  have  been  discovered  by  the 
experimental  method,  but  those  which  can  be  verified 
and  tested  by  experience.  It  is  experimental  testing 
which  gives  to  certain  truths  a  particular  authority,  the 
positive  certainty  which  they  could  not  have  without  it. 

In  certain  respects,  a  parallel  should  be  drawn  between 
experimental  exploration  and  experimental  testing. 

(a)  The  aim  of  experimental  testing  is  to  prove  a  truth 
already  discovered.     It  is  addressed  to  outsiders,  to  the 
public,  to  everybody  possible.     The  inventor  announces 
his  discovery  by  pointing  out  the  experiment  which  any- 
one can  perform,  that  demonstrates  its  truth. 

(b)  Experimental  testing  may  verify  truths  discovered 
by  any  kind  of  process,  —  mathematical  and  deductive 
truths  and  simple  observation,  as  well  as  the  results  of 
experimental  exploration. 

(c)  Experimental  testing,  like  experimental  exploration, 
deals  preferably  with  artificial  and  specially  instigated 
phenomena.     But  this  is  not  an  essential  condition  for 
either.     Facts  just  as  they  occur  may  be  utilized.     Above 
everything  else,  the  experiment  must  be  easy  or  com- 
paratively easy,  in  order  to  be  within  reach  of  the  greatest 
number.     A  truth  will  have  authority  in  proportion  to 
the  number  of  persons  who  have  realized  the  experience 
which  confirms  it. 


420  SCIENTIFIC  LAW  [CH.XIII 

(d)  The  method  of  scientific  investigation  or  exploration 
is  tentative.  A  great  many  experiments  end  only  in 
elimination  of  hypotheses  and  have  only  a  negative  re- 
sult. When  after  a  great  many  negative  experiments,  a 
savant  has  obtained  a  positive  result  and  wishes  to  have  it 
universally  known  and  acknowledged,  he  does  not  have 
to  disclose  all  the  phases  of  his  labor  up  to  the  time  of  his 
success.  He  makes  the  proof  by  choosing  one  or  more  of 
the  experiments  which  he  has  performed ;  perhaps  he  even 
finds  a  process  of  demonstration  outside  of  any  of  the 
material  used  in  his  investigations.  Accordingly,  the  ex- 
periment of  exploration  and  that  of  testing  may  be 
identical;  again  they  may  be  entirely  distinct.  It  is 
therefore  advisable,  from  this  point  of  view  again,  not  to 
confuse  the  two  at  the  risk  of  ambiguity. 

II:  Mechanism  of  the  Experimental  Method.  If  in  his 
examinations,  a  thinker  draws  his  principles  from  outside 
life  and  makes  use  of  none  except  those  he  is  able  to 
prove  by  experiment,  nobody,  I  suppose,  would  refuse  him 
the  title  of  an  experimental  scientist.  Nevertheless,  it  is 
not  certain  that  he  always  employs  the  same  methods. 
He  may  work  differently  in  different  circumstances. 

1.  First  Hypothesis.  An  observer  proposes  to  investi- 
gate the  relation  between  the  appearance  of  the  sky  and 
the  direction  of  the  wind  in  a  certain  locality.  After 
several  years  of  regular  observations  he  proves  that  a 
wind  from  the  north  always  corresponds  to  clear  weather. 
He  makes  an  induction  from  the  phenomena  as  a  whole 
and  uses  it,  to  a  certain  extent,  to  predict  the  weather  in 
advance.  He  shares  his  discovery  with  the  public  and 
every  one  will  be  able  to  do  likewise  in  certain  cases  and 
within  certain  limits. 

The  method  here  will  be  based  on  this  hypothesis:  a 
series  of  observations  without  any  preconceived  idea,  the 
process  of  induction,  verification  through  experiments 
which,  though  not  artifically  incited,  are  conclusive. 


§2]         EXPERIMENTAL  LEGAL  TRUTH         421 

2.  Second  Hypothesis.  An  observer  holds  a  liquid 
composed  of  three  different  liquids  mixed  together,  and 
he  knows  that  this  liquid  is  a  poison.  Is  each  of  the  three 
liquids  poisonous  or  harmless?  If  he  has  a  sample  of 
each,  it  will  be  very  simple  to  test  them  on  some  animal 
and  to  determine  their  character.  Here  the  experiment 
serves  to  reveal  the  truth;  but  this  truth  once  discovered 
can  be  verified  by  anyone  who  wishes  to  do  so. 

Therefore,  the  method  here  will  be:  observation,  experi- 
mental exploration,  experimental  verification  in  case  of 
doubt. 

We  find  ourselves  accordingly  facing  two  methods 
which  seek  truths  by  observation  and  verify  them  by  ex- 
periment. The  first  employs  induction  and  the  second 
dispenses  with  it.  The  former  uses  experimentation  in  the 
narrow  meaning  of  the  term,  and  the  latter  neglects  it 
altogether.  We  will  call  one  inductive-experimental,  and 
the  other  experimento-experimental.  The  two  are  of  equal 
logical  value,  but  it  is  important  that  they  should  not  be 
confused. 

(1)  Inductive-experimental  Method.  "Observation," 
"induction,"  and  "experimental  verification"  constitute 
the  three  phases  of  this  method.  Observation  is  putting 
oneself  in  contact  with  outside  life  with  the  intention  of 
understanding  everything  in  it  which  one  is  capable  of 
understanding;  induction  disentangles  a  general  truth 
from  one  or  more  established  facts;  and,  finally,  experi- 
mental verification  is  a  means  of  testing  which  submits 
the  general  truth  resulting  from  the  induction,  to  one  or 
more  proofs,  thus  rendering  it  indisputable. 

The  three  operations  taken  together  constitute  a  per- 
fect experimental  method.  But  they  are  three  separate 
and  distinct  operations  which  may  perform  their  functions 
under  other  circumstances. 

Thus  observation  cannot  end  in  an  induction,  but  is 
satisfied  to  note  the  facts  just  as  they  have  successively 


422  SCIENTIFIC  LAW  [CH.XIII 

occurred.  The  results  of  observation  might  end  in  ab- 
stractions, analyses,  and  classifications,  which  would  not 
contain  induction  properly  speaking.  The  facts  ob- 
served might  be  of  such  a  nature  that  it  would  be  im- 
possible to  reproduce  them  or  to  have  other  facts  with 
which  they  could  be  compared. 

Induction,  or  the  conclusion  from  the  particular  to  the 
general,  may  be  made  upon  all  kinds  of  data  no  matter 
what  their  nature  and  does  not  necessarily  assume  the  ob- 
servation to  be  from  outer  life.  The  "I  think,  therefore 
I  am"  of  Descartes  is  extended  by  the  process  of  induction 
to  all  men,  "all  men  think,  therefore  all  men  are." 

Finally,  experimental  verification  is  not  indissolubly 
linked  with  observation  or  induction.  In  the  first  place, 
it  is  readily  applied  to  test  the  results  of  deductive 
and  mathematical  sciences.  In  the  second  place,  certain 
inductions  based  upon  observation,  just  as  certain  ob- 
servations, cannot  be  verifiecf  by  experiment.  An  intro- 
spective experiment  might  even  be  possible.  If  for  ex- 
ample some  one  says,  "All  who  behold  this  spectacle  will 
be  filled  with  astonishment,"  everyone  may  be  convinced 
by  experiment  of  the  truth  of  this  proposition  by  going  to 
see  the  said  spectacle. 

We  find  ourselves,  therefore,  in  the  presence  of  three 
distinct  logical  operations,  each  of  which  is  to  be  recom- 
mended for  different  reasons. 

(a)  Observation,  the  direct  contact  with  nature,  di- 
rected with  the  strictest  attention  and  accompanied  by 
the  most  scrupulous  notation,  is  the  most  fruitful  process 
for  the  discovery  of  truth.  In  all  the  concrete  sciences  it 
is  the  one  which  will  give  the  best  results.  In  a  great 
part  of  science  itself,  it  is  almost  the  only  one  which  can 
be  reasonably  employed.  But  it  may  very  well  happen 
that  a  good  observer  will  find  nothing  or  almost  nothing, 
and  that  a  poor  observer  will  discover  a  scientific  truth 
of  the  greatest  significance.  This  would  be  an  exception; 


§2]        EXPERIMENTAL  LEGAL  TRUTH         423 

but  it  is  proper  to  indicate  it  in  order  to  show  very  clearly 
that  the  value  of  observation  is  only  relative  and  that  its 
productivity  may  vary  considerably  according  to  circum- 
stances. 

(b)  Induction  is  a  logical  process  very  dangerous  in 
practice  and  open  to  criticism  in  theory.     It  is  the  cause 
of  a  great  many  mistakes  and  prejudices,  and  is  extremely 
difficult  to  handle.     The  two  virtues  of  those  who  em- 
ploy it  should  be  prudence  and  modesty;  but  these  are 
not  always  present.     It  is,  however,  indispensable  in  the 
study  of  the  concrete  sciences  and  may  generally  find  a 
corrective  in  the  experimental  verification  through  which 
it  acquires  certainty  and  authority. 

(c)  Experimental  verification  tests  truths  discovered 
by  deduction  as  well  as  by  induction,  but  it  can  intervene 
only  in  relation  to  phenomena  whose  repetition  can  be 
artifically  produced  or  which  repeat  themselves  frequently 
enough  to  be  able  to  be  observed  by  everybody. 

(2)  Experiment-experimental  Method.  This  method 
presents  itself  under  many  different  aspects,  which  the 
logicians  perhaps  have  not  stated  very  clearly.  It  may 
be  very  simple  or  very  complicated  according  to  the 
nature  of  the  truth  to  be  discovered.  It  always  embraces 
at  the  same  time  experiments  of  discovery,  which  the  in- 
vestigator makes  in  order  to  convince  himself,  and  experi- 
ments of  proof,  which  he  points  out  to  the  public  in  order 
that  the  public  may  convince  itself.  The  two  classes  of 
experiments  may  be  of  the  same  nature  and  identical  in 
practice;  but  in  theory  they  always  remain  distinct,  for 
it  is  expedient  to  realize  that  their  objects  are  different. 

Whoever  has  discovered  a  truth  by  means  of  experi- 
mental research  may  confine  himself  to  telling  the  public 
how  he  proceeded,  in  order  that  everyone  might  make  the 
experiment  which  he  has  made  and  convince  himself  as  he 
has  done.  He  might  also  indicate  any  other  means  of 
testing  that  he  may  have  had  at  his  disposition.  But  if 


424  SCIENTIFIC  LAW  [CH.XIII 

for  one  reason  or  another  the  experiments  made  once 
cannot  be  repeated,  and  if  no  other  test-experiment 
can  be  provided,  we  shall  have  certainly  gained  through 
the  experimental  method  a  belief  but  not  an  experimental 
truth. 

Thus  in  the  "Horla"  of  Guy  de  Maupassant,  the  hero, 
convinced  that  he  is  followed  by  an  invisible  being,  makes 
a  series  of  practical  and  ingenious  experiments  which  prove 
to  him  the  existence  of  this  "horla."  But  the  same  tests 
made  by  others  would  not  give  the  same  results.  The 
method  employed  is  good  in  so  far  as  it  is  a  method,  but 
it  does  not  provide  the  possibility  of  verification;  the 
assertions  of  the  experimenter  only  meet  with  incredulity. 

Ill:  Observation:  Its  Inner  Nature  and  Its  Progress. 
One  might  be  astonished  perhaps  to  see  observation 
heralded  as  a  process  of  research  relatively  recent  in  the 
physical  and  quite  recent  in  the  intellectual  sciences.  Is 
not  the  observation  of  surroundings  the  first  intellectual 
effort  which  the  most  limited  human  and  even  the  most 
primitive  animal  could  perform?  Reduced  to  its  simplest 
form,  the  observation  of  the  oyster  upon  its  rock,  of  the 
bee,  of  the  dog,  of  the  cat,  of  the  child,  of  the  farmer, 
and  of  the  scholar  are  identical  in  nature.  It  is  for  all 
of  them  the  best  means  of  knowing  what  surrounds  them,- 
so  far  as  they  are  able  to  know. 

From  this  point  of  view,  it  is  for  everyone  and  in  every 
situation  the  true  scientific  method. 

It  is  nevertheless  very  evident  that  each  of  these  beings 
will  arrive  through  observation  at  very  different  degrees 
of  knowledge,  for  the  simple  reason  that  they  find  them- 
selves in  very  different  material  and  intellectual  condi- 
tions. The  oyster,  the  dog,  the  child,  and  the  farmer 
will  perhaps  pay  more  attention  to  the  weather  today 
than  will  the  meteorologist.  The  latter  alone  will  make 
truly  scientific  observations,  because  he  alone  is  well 
equipped  materially  and  intellectually.  The  quality  of 


§2]        EXPERIMENTAL   LEGAL  TRUTH          425 

the  observation  depends  upon  the  quality  of  the  material 
and  the  intellectual  equipment.  Every  time  that  great 
changes  are  made  in  the  equipment  which  the  scholar  has 
at  his  disposal,  old  observations  and  those  made  with  the 
old  tools  lose  prestige  and  may  be  completely  abandoned. 
It  is  the  same  when  there  is  a  change  in  the  intellectual 
tool  constituted  by  the  brain.  Every  time  that  the  ex- 
perimenter gains  in  precision  and  subtlety,  he  neglects  the 
rudimentary  labor  of  the  past  and  believes  himself  the 
first  and  only  true  observer.  Thus  observation,  the 
earliest  form  of  intellectual  activity  and  by  far  the  oldest, 
appears  to  us  to  be  always  new  and  always  just  beginning. 

The  intellectual  tool  is  the  brain.  Everything  which 
develops  the  brain  develops  its  power  of  observation.  Now 
what  develops  the  brain  is  not  —  in  no  case  is  it  solely  — 
minute  attention  to  exterior  facts.  It  is  entirely  the 
inner  labor  —  memory,  comparison,  classification,  inter- 
pretation, deduction  —  which  is  afterwards  spent  on  the 
impressions  drawn  from  reality.  Moreover,  this  inner 
labor  is  necessarily  far  from  always  being  very  fortunate 
from  the  scientific  point  of  view.  It  may  lead  the  mind 
far  away  from  reality  into  a  world  of  abstract  and  often 
chimerical  ideas.  The  intensity  of  the  mental  labor  may 
cause  the  mind  to  forget  its  first  observations  or  to  mis- 
construe them  and  divert  it  from  looking  about. 

In  the  history  of  human  thought,  one  very  often  en- 
counters disciplines  which  seem  to  make  the  human  mind 
labor  "in  vacuo. "  One  has  the  impression  that  this  wasted 
effort  might  be  better  employed.  Perhaps  this  is  a  mis- 
take. Even  if  the  object  of  the  labor  is  totally  devoid  of 
interest,  the  labor  in  itself  may  constitute  a  powerful 
gymnastic  exercise  which  leaves  the  brain  stronger  and 
more  simple,  and  ready  to  observe  reality  to  a  thousand 
times  better  advantage  than  formerly. 

The  discipline  of  Roman  law  in  the  Middle  Ages  was 
not  vain.  Its  positive  effect  on  juridical  technic  and 


426  SCIENTIFIC  LAW  [CH.XIII 

social  organization  is  tremendous.  Nevertheless,  it  may 
be  asked  whether  the  services  rendered  by  it  outside 
of  law,  in  the  formation  of  the  modern  mentality,  in  the 
development  of  the  power  of  observation,  are  not  still 
greater. 

It  is  to  be  remarked  that  the  abstract  forms  of  discipline 
and  those  termed  scholastic  nearly  always  rest  upon  anal- 
ysis. Their  favorite  word  is  the  famous  ' '  distinguo ' '  so  much 
decried,  and  it  cannot  be  denied  that  practice  in  every 
kind  of  casuistry  develops  mental  acuteness  and  subtlety. 
Now,  the  analytical  power  determines  the  productivity 
of  observation.  It  is  that  which  permits  the  discernment 
of  resemblances  and  differences  more  and  more  delicate, 
and  the  discovery,  in  a  lump  which  seems  amorphous,  of 
a  judiciously  disposed  organism.  It  is  the  intellectual  in- 
strument which  may  be  compared  to  the  microscope.  It 
is  because  of  the  inequality  in  their  power  of  analysis  that 
the  animal,  the  ordinary  man,  and  the  scholar  make  ob- 
servations of  unequal  value.  Thus  the  human  mind  is  a 
whole.  It  is  not  composed  of  one  part  deductive  and 
false,  and  one  part  inductive  and  true.  It  is  not  per- 
mitted to  choose  between  reflection  and  observation  in 
arriving  at  the  truth.  For  observation  itself  is  composed 
of  deductive  elements  which  determine  its  power. 

Hence  it  should  be  concluded  that  as  far  as  its  results 
are  concerned,  observation  is  worth  only  what  the  in- 
telligence in  which  it  originates  is  worth.  It  is  not  an 
instrument  which  performs  its  functions  entirely  alone.  It 
demands  accuracy  of  thought  in  order  for  it  to  be  employed 
with  safety,  and  analytical  power,  for  it  to  be  handled  with 
profit.  But  in  so  far  as  it  is  a  method,  it  is  justified  even 
for  those  who  derive  nothing  from  it  or  end  with  erroneous 
results..  It  is  for  everyone  the  only  means  of  obtaining 
external  truth.  For  this  purpose,  it  preserves  an  unde- 
niably logical  and  scientific  character  even  when  it  is 
poorly  conducted.  It  can  only  be  asked  that  everyone 


§2]        EXPERIMENTAL  LEGAL  TRUTH         427 

do  what  he  can  and  employ  whatever  tools  he  has  at  his 
disposal  even  though  they  be  defective. 

It  is  expedient  to  make  a  second  very  important  reser- 
vation. Observation  arbitrarily  cuts  out  from  reality 
groups  of  facts  which  it  causes  to  enter  into  our  under- 
standing; so  that  there  is  disclosed  to  us  not  pure  reality, 
but  an  artificial  world  made  up  of  real  elements.  In 
reality,  the  elements  distinguished  co-exist  with  a  crowd 
of  other  elements  that  are  unknown  to  us  but  often  of 
greater  importance.  The  elements  that  are  more  or  less 
isolated  in  the  body  of  our  knowledge  are  thrown  into  a 
prominence  which  distorts  them.  This  is  a  fact  which 
must  be  taken  into  account.  Thus  in  the  creation  of  a 
historical  work,  certain  facts  are  chosen  to  which  the  term 
"historical  facts"  is  applied.  This  qualification  or  dis- 
qualification is  purely  arbitrary  and  subjective,  and  can- 
not have  the  least  scientific  value. 

IV:  Juridical  Observation  and  Historical  Observation. 
The  person  who  wishes  to  know  the  actual  provisions  of 
any  legal  system  and  seeks  to  gain  information  concerning 
them  by  oral  or  written  instruction,  does  not  perform  a 
work  of  observation.  He  confines  himself  to  under- 
standing what  is  told  him  or  what  he  reads,  and  to  record- 
ing it  in  his  memory.  It  would  here  be  the  same,  whether 
he  confined  himself  to  a  single  legal  system  or  wished  to 
know  the  institutions  of  a  number  of  countries.  The 
method  in  question  does  not  accordingly  form  a  part  of 
the  education  of  the  practical  lawyer. 

It  is,  moreover,  quite  difficult  to  distinguish  clearly  be- 
tween the  jurist  who  learns  and  the  one  who  observes. 
They  perform  the  same  material  acts  —  reading  or  listen- 
ing. But  one  tries  to  record  in  his  memory  what  comes 
to  his  knowledge,  while  the  other  brings  together  and  com- 
pares the  facts  which  are  thus  communicated  to  him. 
These  comparisons  may  result,  moreover,  in  simple  classi- 
fications or  have  grander  ambitions.  In  every  case  the 


428  SCIENTIFIC   LAW  [CH.  XIII 

criterion  is  purely  intellectual  and  hence  quite  difficult  to 
grasp.  The  personal  effort  of  the  worker,  his  initiative, 
does  not  begin  with  the  establishment  of  the  facts,  which 
are  furnished  him  by  someone  else,  but  by  the  establish- 
ment of  relations  between  these  facts.  Hence  the  difference 
between  this  observation  and  that  of  the  physical  sciences. 

Legal  history,  like  general  history,  is  not  observation 
of  the  past,  but  of  what  has  been  written  in  and  upon  the 
past.  (The  subsidiary  sciences,  such  as  archeology,  nu- 
mismatics, etc.,  may  be  put  aside.)  To  observe  in  history 
comes  back  to  reading,  although  all  reading  is  not  obser- 
vation; and,  as  history  has  always  been  studied  by  read- 
ing, the  method  in  itself  has  hardly  changed.  But  here 
as  elsewhere  the  material  and  intellectual  tools  have  been 
improved. 

A  great  many  historians  have  no  other  purpose  than  to 
gather  materials  or  to  render  them  more  easily  accessible. 
The  search  for  unknown  texts,  publications  of  hitherto 
unpublished  texts  or  correct  editions,  translations  into  a 
modern  language,  interpretations  of  texts  in  order  to  de- 
termine their  true  meaning,  compilations  of  texts  upon  the 
same  subjects,  —  all  these  labors,  whose  importance  cannot 
be  exaggerated,  may  be  considered  as  improvements  in 
the  equipment  of  historical  observation  and  not  as  his- 
torical observation  properly  speaking.  The  document  is 
the  tool  "par  excellence"  of  the  observer  in  the  domain  of 
history  as  well  as  of  the  observer  in  the  field  of  juris- 
prudence, and  they  both  perform  their  tasks  through  the 
comparison  of  documents. 

The  historical  narration  which -restricts  itself  to  sum- 
ming up  a  document  or  combining  several  documents  in 
order  to  make  them  better  known  to  the  public  is  only  a 
work  of  reproduction,  and  one  that  is  simple  in  form.  It 
cannot  claim  to  disclose  a  new  truth.  It  simply  creates 
an  implement  of  labor  which  may  be  of  great  value. 

The  historical  critic  who  compares  documents  to  check 


52]        EXPERIMENTAL  LEGAL  TRUTH         429 

one  with  the  other  and  establish  how  far  each  is  trust- 
worthy, may  claim  the  method  of  observation  and  the 
term  scientific  without  dispute.  His  labors  will  generally 
end  in  the  creation  of  a  new  implement  of  toil  more 
perfect  than  those  which  have  hitherto  been  in  use. 

Juridical  observation  may  be  made  in  the  present,  in 
the  past,  or  in  both.  It  is  therefore  historical  observation 
also.  It  becomes  intellectually  improved  by  the  progress 
of  analysis  and  by  keen  insight  in  isolating  the  objects 
under  examination  and  in  multiplying  the  viewpoints 
from  which  this  examination  is  conducted. 

In  juridical  fields,  a  distinction  is  made  between  the 
study  of  diverse  institutions  —  the  social  aims  to  be 
realized  —  and  the  functions  of  law  properly  speaking  — 
political,  legislative,  judiciary  or  doctrinal.  The  field  of 
exploration  offered  to  the  investigator  is  unlimited  and 
only  its  broad  classifications  can  be  indicated. 

Although  the  study  of  the  relations  between  a  juridical 
element  and  one  external  to  the  law  is  far  from  new,  it  has 
as  yet  no  very  precise  name  in  science.  Thus  the  rela- 
tionship between  marriage  and  the  death  rate,  and  that 
between  primogeniture  and  population  has  attracted  the 
attention  of  many  thinkers.  Nearly  every  institution  has 
been  considered  in  its  economical,  geographical  and  other 
relations.  For  the  law  properly  speaking,  and  juridical 
technic,  comparisons  of  this  nature  might  be  equally  nu- 
merous and  fruitful.  The  life,  the  customs,  the  beliefs 
of  a  people  have  a  real  influence  upon  the  form  of  the  law. 
Thus  the  existence  of  a  book  which  is  considered  sacred  or 
possesses  great  authority  will  modify  the  technic  of  the 
interpreter. 

The  comparison  of  juridical  elements  may  create  quite 
different  forms  of  discipline,  which  group  themselves 
under  one  or  the  other  of  the  four  following  types: 

(1)  Comparison  of  Co-existence.  This  consists  in  putting 
alongside  of  one  another,  one  or  more  juridical  elements 


430  SCIENTIFIC  LAW  [CH.XIII 

which  are  in  existence  in  a  certain  number  of  countries  at 
an  exact  and  given  time.  Comparative  law  comes  in 
this  category.  In  general,  it  consists  in  comparing  the 
law  in  certain  countries  by  taking  it  at  the  time  the  author 
writes.  This  might  be  done  for  any  period  whatever  of 
the  past  without  changing  its  character. 

(2)  Comparison  of  Nature.    This  consists  in  analyzing 
certain  juridical  elements  or  solutions  just  as  they  have 
presented  themselves  at  any  period,  in  the  past  as  well  as 
in  the  future,  without  taking  any  account  of  time. 

(3)  Chronological  Comparison.    This  consists  in  tracing 
a  juridical  element  through  time  —  in  a  certain  period  or 
in  history  as  a  whole  —  by  following  the   order  of  its 
effective  realizations. 

(4)  Comparison  according  to    Comparative  Evolution. 
This  consists  in  comparing  the  evolution  of  certain  jurid- 
ical elements  in  a  certain  number  of  civilizations  which 
have  not  been  contemporaneous,  but  are  fictitiously  con- 
sidered to  be  so.     Thus  the  evolution  of  the  law  of  suc- 
cession among  the  Romans,  Hebrews,  Mussulmen  and 
Germans. 

We  do  not  claim  that  this  classification  is  perfect  or 
definitive.  The  same  work  may  evidently  be  effected 
sometimes  from  one  point  of  view,  sometimes  from  an- 
other. But  analysis  based  upon  observation  ought  to  be 
capable  of  distinguishing  between  the  different  types  of 
juridical  comparison,  for  they  have  not  the  same  scope 
and  ought  to  end  in  results  of  a  different  nature. 

Thus  simply  for  an  example: 

(1)  Comparison  according  to  co-existence  permits  of  a 
knowledge  of  the  particular  tendencies  of  each  people,  the 
state  of  its  civilization  at  any  given  time,  the  institutions 
which  harmonize  with  one  another,  etc. 

(2)  Comparison  according  to  nature  permits  of  the  dis- 
entanglement of  the  permanent  and  the  temporary  ele- 
ments of  law.     It  presents  us  with  the  greatest  abundance 


§2]         EXPERIMENTAL  LEGAL  TRUTH         431 

of  juridical  forms  by  which  any  particular  social  aim  may 
be  realized. 

(3)  Chronological  comparison  discloses,  among  other 
things,  the  successive  influence  which  different  civiliza- 
tions may  have  had  upon  one  another. 

(4)  Finally,  through  comparison  according  to  compara- 
tive evolution,  one  may  observe  the  general  tendencies  of 
juridical  changes  under  the  influence  of  civilization. 

V:  Experience  and  Juridical  Truths.  The  diverse  ob- 
servations made  upon  the  law  of  the  past  and  present  end 
in  establishing  the  fact  that  inductive  propositions  are 
worth  exactly  what  the  observations  from  which  they 
result  are  worth.  If  the  worker  has  been  conscientious 
and  meticulous  in  his  examination,  if  he  has  had  access  to 
numerous  documents,  his  work  will  have  authority;  if  he 
shows  himself  to  be  superficial  and  provided  with  few  docu- 
ments, his  assertions  will  have  no  value.  Can  inductive 
juridical  propositions  of  the  four  types  previously  stated 
become  changed  into  experimental  truths? 

Some  say  "Yes,"  others  "No."  What  must  we 
think? 

(1)  The  Possibility  of  the  Transformation  of  Inductive 
Juridical  Propositions  into  Experimental  Truths,  (a)  It  be- 
hooves us  to  call  to  memory  the  old  argument  of  the 
partisans  of  the  negative:  Social  facts,  and  accordingly, 
juridical  facts,  cannot  be  brought  to  pass  by  artificial 
means,  consequently  they  cannot  be  the  object  of  experi- 
ments, properly  speaking. 

This  objection  has  been  long  since  discarded.  The  ar- 
tificial experiment  has  its  advantages,  but  it  is  not  indis- 
pensable. A  great  many  of  the  natural  sciences,  by  the 
simple  observation  of  natural  facts,  furnish  experimental 
truths  which  can  be  surely  controlled.  Thus,  although 
we  cannot  produce  either  rain  or  fair  weather,  we  can  have 
certain  indications  as  to  some  of  the  causes  which  produce 
rain  or  fair  weather. 


432  SCIENTIFIC  LAW  [Cn.XIII 

(b)  On  the  other  hand,  the  partisans  of  the  affirmative 
who  wish  to  establish  a  similarity  between  the  experi- 
mental propositions  of  the  social  and  those  of  the  physical 
sciences,  advance  an  argument  equally  devoid  of  value. 
They  point  out  that  in  contrasting  historical  with  present- 
day  data,  the  methods  of  experimental  exploration  de- 
scribed by  John  Stuart  Mill  may  be  employed ;  these  are 
those  of  agreement,  of  difference,  of  concomitant  variations 
and  of  residues;   more   particularly  the   third  of  these 
processes,  that  of  concomitant  variations.     This  fact  is  in- 
contestable.    The  comparative  method  is  nothing  else,  and 
it  is  used  in  every  domain  of  the  law.     Thus  should  one 
wish  to  know  the  relations  between  the  power  of  the  State 
and  penal  law,  or  between  inheritance  and  matrimonial 
regimes,  comparative  observations  or  comparative  experi- 
mentations must  be  resorted  to.     Here  it  is  a  question  of 
a  process  of  exploration,  of  investigation,  which  is  to  be 
highly  recommended  in  every  respect,  but  is  not  sufficient 
to   give   its   results   experimental   authority.     It   is   not 
sufficient  that  a  savant  may  have  employed  a  good  method 
in  order  to  carry  conviction  to  the  public  at  large.     He 
should   furnish  in  addition  a  means  of  testing  his  as- 
sertions which  is  within  reach  of  everyone  or  at  least  of  a 
great  many. 

(c)  It  is  the  possibility  and  facility  of  testing  which  give 
authority  to  experimental  scientific  truths.     The  most  in- 
credulous may  become  convinced  by  his  own  efforts,  and 
the  truth  revealed  can  no  longer  be  questioned.     Hence 
there  results  a  general  and  definitive  conviction  based 
upon  facts  objectively  established  and  not  upon  a  com- 
munity which  is  purely  subjective  and  variable.     The 
sciences  that  have  perfect  experimental  control  register 
their  results,  and  the  verifications  made  rise  to  others 
more  complex  which  will  also  be  solidly  established;  the 
truth  gained  prepares  for  other  truths.     Slow  or  fast, 
progress  is  assured. 


§2]         EXPERIMENTAL  LEGAL  TRUTH         433 

(2)    When  is  There  Perfect  Experimental  Testing? 

(a)  Experimental  testing  should  be  quick,  easy,  and 
within  the  reach  of  everyone,  even  of  the  ignorant.     The 
farther  the  experimental  test   departs  from  this   type, 
the  more  the  truth  which  it  guarantees  loses  its  experi- 
mental quality. 

(b)  The  test  should  be  independent  of  the  person- 
ality of  the  inventor.     Thus  in  spite  of  all  the  precautions 
that  it  is  possible  to  take  to  avoid  fraud,  the  experiments 
of  spiritualism  are  suspected  because  they  require  the 
presence  of  certain  persons  who  are  interested  in  deceiving 
the  public. 

(c)  It  should  function  with  almost  absolute  certainty. 
The  experiments  which  fail  ought  to  be  only  those  due  to 
the  awkwardness  of  the  beginner  or  to  the  unusual  circum- 
stances.   After  a  little  practice  and  with  proper  care, 
failures  ought  to  be  eliminated. 

In  the  case  of  the  artificially  produced  experiment 
where  the  phenomena  can  be  isolated,  it  is  easy  enough  to 
obtain  almost  invariable  success.  In  the  case  of  the  ex- 
periment with  natural  facts,  one  is  obliged  to  take  things 
just  as  they  occur,  and  they  do  not  always  occur  favor- 
ably. The  result  which  might  justly  be  expected  is  not 
produced  because  some  unexpected  fact,  foreign  to  the 
matter  in  hand,  interposes  and  interferes  with  its  action. 
The  experiment  is  a  failure.  No  doubt  this  failure  can 
often  be  explained  and  justified.  But  what  has  failed 
has  failed.  Foresight  which  has  not  been  realized  is  but 
poor  foresight.  The  value  of  the  truth  which  has  been 
lost  in  the  test  is  not  at  stake;  it  may  be  incontestable. 
But  it  is  no  longer  or  only  to  a  slight  degree,  experimental 
truth.  For,  as  must  be  clearly  understood,  there  are  ex- 
perimental truths  of  every  degree  and  every  quality.  If 
some  are  beyond  question,  others  have  only  a  very  relative 
authority.  It  is  a  well-recognized  experimental  truth  at 
the  present  time  that  the  best  bouillon  has  no  nutritive 


434  SCIENTIFIC  LAW  [Cn.  XIII 

value,  and  that  a  pound  of  beans  is  as  nourishing  as  a 
pound  of  meat,  and  more  so  than  the  same  quantity  of 
bread.  Absolutely  conclusive  tests  have  been  made  upon 
dogs,  it  seems.  It  is  still  possible  for  a  person  to  confine 
his  menu  to  consomme"  and  beefsteak  without  shocking 
anyone.  But  when  there  are  enough  dogs  and  enough 
meat  for  each  person  to  try  for  himself  the  experiment  of 
the  physiologists,  their  truth,  which  is  imperfectly  experi- 
mental, will  become  completely  so,  and  everyone  will 
hasten  to  abandon  meat  for  beans. 

(3)  How  are  Social  and  Juridical  Observations  to  be 
Verified  Experimentally? 

(a)  If  anyone,  in  reviewing  a  series  of  texts,  discovers  a 
principle  or  a  truth  of  juridical  development,  he  can  only 
offer  his  own  work  as  a  proof  of  what  he  advances.     Any- 
one who  wishes  to  verify  the  conclusions  of  this  labor  will 
have  to  follow  it  step  by  step,  investigate  all  the  docu- 
ments, and  see  if  they  have  been  properly  interpreted  and 
if  they  justify  the  author's  thesis,  so  that  the  critic  who 
wishes  to  make  a  thorough  criticism  has  as  much  to  do  as 
the  author  himself. 

(b)  Even  an  examination  of  this  kind  would  not  be 
sufficient.     The  author  has  perhaps  led  us  along  the  wrong 
road.     Consciously  or  unconsciously,  he  has  concealed 
facts  which  would  nullify  his  assertions.     It  is  necessary, 
therefore,  to  investigate  not  only  his  own  documents  but 
new  ones. 

(c)  Finally,   only  very  complex  phenomena  actually 
occur.     Announced  concordances  do  not  come  forth;  ex- 
pected developments  do  not  develop,  and  tests  will  turn 
out  wrong,   even  when  the  truths  discovered   are   not 
false,  but  solely  through  the  impossibility  of  making  the 
experiments  under  the  proper  conditions. 

As  regards  social  science,  experimental  verification  is 
very  difficult.  It  is  dependent  upon  specialists,  and  the 
public  at  large  has  reason  to  distrust  them.  In  order  to 


§2]       EXPERIMENTAL  LEGAL  TRUTH          435 

make  a  serious  and  conscientious  criticism  of  any  fairly 
important  historical  or  juridical  principle  set  forth  by  an 
author,  years  of  toil  are  necessary.  These  years  of 
study  which  have  sufficed  to  convert  the  critic  himself, 
will  not  convert  everybody.  It  very  often  happens  that 
theories  which  have  been  elaborated  with  great  pains 
and  scientific  precision  never  gain  any  standing  in  the 
scientific  world  because  no  one  of  recognized  scholarly 
attainments  has  examined  them  thoroughly  and  con- 
scientiously. 

Therefore  the  social  sciences  are  at  the  present  time 
only  very  imperfectly  experimental.  Nevertheless,  they 
are  so  up  to  a  certain  point.  It  is  not  easy  to  verify  them, 
but  it  is  possible.  Such  verification  is  not  effected  in  a 
day,  but  in  the  course  of  time,  of  many,  many  years. 
Thus  the  proofs  of  the  existence  of  matriarchy  were  ac- 
cumulated in  all  countries  and  in  all  systems  of  law, 
long  after  the  institution  had  been  discovered  among  a 
certain  number  of  peoples.  A  great  many  points  in  the 
history  of  law  may  be  considered  as  verified  by  experi- 
ments. 

Finally,  it  is  to  be  hoped  that  simpler  and  quicker  pro- 
cesses of  experimental  verification  will  be  discovered  which 
will  be  within  the  reach  of  all  or  nearly  all.  Let  us  look 
to  the  future  which  perhaps  will  not  neglect  the  domain 
of  the  intellectual  in  the  distribution  of  its  favors.  At  the 
present  time,  those  who  erect  the  experimental  banner 
in  the  science  of  history  and  law  and  expect  wonder- 
ful success,  have  in  no  way  changed  the  older  methods. 
These  old  methods  are  good  without  doubt  and  it  is  by 
no  means  wise  to  discard  them.  Indeed,  they  are  the 
best,  if  not  too  pretentious;  they  deserve  quite  as  much 
confidence  as  mistrust. 

VI :  The  Experimental  Method  and  the  Law's  Development. 
We  have  considered  here  the  experimental  method  as  a 
means  of  knowing  the  law  in  all  its  infinite  aspects.  Knowl- 


436  SCIENTIFIC  LAW  [di.XIII 

edge  of  juridical  elements,  of  relations  between  these  ele- 
ments, of  institutions,  of  relations  between  institutions, 
and  of  relations  between  the  law,  institutions  and  outside 
life,  —  all  of  this  knowledge  may  be  expected  to  result 
from  scientific  observation  which  has  been  conducted 
from  an  abstract  as  well  as  a  concrete  point  of  view.  This 
theoretical  knowledge  of  the  law  evidently  possesses  great 
practical  advantages.  The  lawmaker  has  a  deep  interest 
in  knowing  whether  any  specific  institution  which  is  pro- 
posed to  him  for  adoption  is  in  existence  in  a  specific 
country,  whether  it  was  in  existence  formerly  under 
specific  circumstances,  and  whether  it  gives  or  has  given 
specific  results.  Do  we  act  otherwise  in  private  life  when 
we  seek  examples  to  direct  us?  The  most  primitive  law- 
makers were  likewise  guided  by  examples  from  the  past 
or  by  those  of  their  neighbors.  The  sages  of  ancient 
civilizations  liked  to  live  in  ports,  to  chat  with  sailors 
who  would  describe  the  customs  of  the  towns  at  which 
they  had  touched.  This  was  their  way  of  studying 
comparative  law.  In  our  day,  there  is  an  abundance  of 
instruction  concerning  the  present  and  the  past,  and  it  is 
more  and  more  positive  and  accurate;  but  the  method  is 
the  same,  it  is  eternal. 

Experience  is  good  advice,  and  it  is  reasonable  to  listen 
to  it.  But  it  is  nothing  more.  Correct  as  this  principle  is, 
it  would  be  false  to  exaggerate  its  authority  and  announce: 
"Experience  gives  us  scientific  directions  which  we  ought 
to  follow." 

This  is  true  for  a  number  of  peremptory  reasons  of 
which  the  following  are  the  most  important : . 

(a)  According  as  our  methods  of  observation  become 
more  effective  as  regards  the  present  and  the  past,  they 
throw  a  stronger  light  upon  the  complexities  and  the  diffi- 
culties of  social  problems.  What  is  identical  in  a  super- 
ficial observation  is  entirely  unlike  in  a  close  examination 
of  minutiae.  Accordingly,  a  reform  should  be  appraised 


§2]         EXPERIMENTAL  LEGAL  TRUTH          437 

not  only  by  its  results  in  some  specific  country,  but  in  its 
relations  with  the  mentality,  the  legislation,  and  so  on, 
of  the  country  into  which  it  is  to  be  introduced.  Even 
so,  one  could  be  sure  of  nothing,  at  least  in  the  present 
state  of  science. 

(b)  If  one  could  determine  with  certainty  the  effects 
which  a  given  reform  would  produce  in  a  given  country, 
these  might  be  only  the  principal  and,  at  best,  some  of 
the  secondary,  effects.     It  would  be  a  mathematical  im- 
possibility to  foresee  all  the  secondary,  tertiary  and  further 
effects,   and  to  understand  their  importance.     A  very 
minor  and  distant  consequence  of  a  reform  might  be  so 
repugnant  that  the  warmest  partisans  of  the  principal 
effect  would  recoil  in  horror  if  they  could  foresee  it. 

(c)  While  inventing  the  ideal  and  unrealizable  hypothe- 
sis of  an  experimental  investigation  capable  of  making 
known  all  the  effects  of  a  given  juridical  disposition,  we 
may  not  conclude  that  the  obligation  to  accept  or  reject 
this  disposition  is  scientifically  imposed.     As  we  have  had 
occasion  to  say  many  times,  no  state  of  knowledge  can 
scientifically  impose  an  act  of  will.     Such  self-evident 
truths  need  not  be  formulated.     But  the  words  "experi- 
ence," "experimental,"  "observation,"  have  such  prestige 
that  attempts  are  made  to  place  systems  of  legal  philoso- 
phy or  legislative  methods  under  the  protection  of  this 
famous  method,  even  before  we  have  the  slightest  experi- 
mental basis. 

These  pseudo-experimental  theories  are  numerous,  but 
it  will  be  sufficient  to  cite  two  quite  different  types: 

(1>  Search  for  the  Fundamental  Fact  oj all  Human  Society. 
A  great  many  writers  seek  to  discover  through  experience 
and  observation  a  fact  common  to  all  systems  of  society. 
Upon  this  common  fact,  established  through  observation, 
there  will  be  based  a  general  principle  capable  of  direct- 
ing the  making  of  laws  and  the  evaluation  of  institutions. 
vSince  the  first  observation  is  scientific  and  experimental, 


438  SCIENTIFIC  LAW  [CH.XIII 

they  believe  the  evaluations  which  arise  as  consequences 
therefrom  must  also  be  scientific  and  experimental. 

Here  is  a  well-known  example:  "Man  lives  in  society." 
This  proposition  may  be  considered  as  sufficiently  estab- 
lished by  experience.  This  first  authenticated  statement 
becomes  distorted  by  insensible  transitions  into  proposi- 
tions which  grow  farther  and  farther  from  experimental 
truth  and  finally  become  true  principles  of  morality,  arbi- 
trarily laid  down  and  capable  of  furnishing  any  deduction 
desired;  thus: 

"Men  live  in  society,"  "Man  is  a  social  being,"  "Man 
can  develop  only  in  social  life,"  "The  aspirations  of  the 
individual  can  become  realized  only  through  the  existence 
of  society, "  "  The  stronger  the  society,  the  happier  the  in- 
dividual," "Men  of  the  same  class  in  society  hold  to- 
gether," "The  aim  of  the  life  of  the  individual  is  to  con- 
tribute to  the  development  of  the  social  body,"  etc.  A 
skilful  theorist  will  multiply  the  transitions  so  that  it  be- 
comes almost  impossible  to  tell  the  exact  moment  when 
the  jugglery  takes  place.  From  the  fact  that  you  have 
admitted  that  you  take  pleasure  in  chatting  with  friends 
over  a  good  dinner,  you  will  be  condemned  morally  and 
socially,  by  virtue  of  the  subtle  substitutions  of  the  skilled 
dialectician,  to  perform  some  specific  "social  function" 
which  is  deeply  repugnant  to  you. 

Certain  theories  of  this  kind,  presented  with  great  abil- 
ity and  careful  consideration,  constitute  moral  and  social 
constructions  which  are  quite  alluring.  They  may  have 
some  practical  utility  but  —  as  it  has  been  remarked  else- 
where long  ago  —  they  have  no  sort  of  scientific  or  experi- 
mental character. 

(2)  Search  for  the  Unity  of  Direction  in  Moral  and  Social 
Evolution.  Analysis  compels  us  to  distinguish  between 
the  two  pseudo-experimental  methods  which  are  logically 
independent  of  one  another.  But  they  are  often  era- 
ployed  by  the  same  author. 


§2]         EXPERIMENTAL  LEGAL  TRUTH         439 

The  one  which  we  have  just  explained  consists  of  seek- 
ing through  observation  "the  fundamental  fact  of  all 
human  society,"  in  order  to  deduce  from  it  a  system  of 
ethics  and  of  social  politics.  The  second  uses  observation 
more  constantly,  if  not  more  successfully.  The  examina- 
tion of  each  institution  and  each  principle  of  law  and 
morality  of  the  past  and  present  is  relied  upon  to  guide 
the  lawmaker  in  a  safe  and  scientific  course.  For  that  a 
single  hypothesis  is  sufficient.  It  is  sufficient  to  suppose 
that  the  moral  and  social  world  is  continually  developing 
in  the  same  direction,  in  a  straight  line,  we  might  say. 
It  is  then  easy  to  obtain  these  directions  by  a  comparison 
of  the  past  and  the  present.  If  one  wishes  to  know  what 
the  family,  property,  penal  or  public  law  of  tomorrow 
will  be,  one  has  only  to  study  in  what  ways  these  institu- 
tions have  been  transformed  in  the  last  ten,  twenty, 
thirty,  hundred,  two  hundred  or  more  years.  These 
same  transformations  will  become  more  and  more  accen- 
tuated. It  is  therefore  easy  for  us  to  know  what  each  in- 
stitution, each  principle  of  law  or  morality  tends  to  be- 
come and  will  necessarily  become.  The  role  of  the  law- 
maker is  to  direct  these  necessary  transformations  and  to 
bring  them  about  smoothly,  hastening  or  retarding  them 
according  to  circumstances. 

This  thesis  may  be  presented  under  a  very  scientific 
form  by  appealing  to  the  "laws.of  evolution,"  "the  for- 
mulas of  change  and  transformation,"  or  to  "the  orienta- 
tion of  man  and  society  toward  a  given  state."  But  the 
most  ordinary  logic  uses  absolutely  identical  reasoning 
without  resorting  to  any  philosophic  formula.  Nothing  is 
more  commonplace  than  to  judge  tomorrow  by  today.  It 
is  a  mental  vice  of  which  it  is  very  difficult  to  correct 
oneself.  If  it  is  fair  weather  today,  it  seems  to  us  that  it 
will  always  be  fair;  if  some  enterprise  prospers,  it  can 
only  keep  on  prospering;  a  price  is  advancing,  one  snatches 
at  a  chance  to  buy.  How  we  are  deceived  the  first  day  of 


440  SCIENTIFIC  LAW  [CH.XIII 

the  drop !  This  drop  is  certainly  going  to  continue  steadily, 
and  a  panic  takes  possession  of  the  community.  There  is 
a  good  sale  for  wine,  everybody  plants  grapevines;  there 
is  a  dullness  in  the  market,  they  are  neglected.  In  all  the 
circumstances  of  our  existence,  we  see  tomorrow  under 
the  aspect  of  a  today  enlarged  in  every  way,  and  we  are 
often,  very  often  deceived. 

Towards  the  end  of  the  nineteenth  century,  some  seri- 
ous-minded political  economists  (not  to  mention  Robida) 
affirmed  that  the  rate  of  interest  was  continually  and 
constantly  falling.  In  1920,  it  ought  to  be  one-half  per 
cent,  at  the  most.  The  social  problem  was  solved  by  this 
fact.  Since  no  one  could  live  upon  acquired  fortune, 
everyone  would  be  compelled  to  go  to  work.  By  the 
force  of  circumstances,  "labor  and  virtue"  was  to  become 
the  motto  of  the  twentieth  century.  Here,  as  everywhere, 
"the  moral  law  was  virtually  contained  in  the  scientific 
law." 

This  theory  of  moral  and  social  evolution  through  the 
employment  of  the  experimental  and  inductive  method 
was  and  is  still  perhaps  the  accepted  theory  in  secondary 
instruction.  In  colleges  it  is  held  to  be  as  true  as  the 
Gospel.  It  has  the  advantage  of  creating  a  cheap  system 
of  ethics  which  is  apparently  scientific  and  inclined  to 
have  great  weight  with  rather  unreflecting  youth.  We 
shall  not  discuss  its  merits  as  a  process  of  civic  education. 
From  the  scientific  point  of  view  it  is  scarcely  necessary 
to  say  that  this  method  has  nothing  in  it  of  the  experi- 
mental except  the  name.  That  the  present  and  the  past 
can  give  direction  to  the  future,  morally  or  socially,  this  is 
what  history  contradicts  as  flatly  as  possible.  In  any 
case,  a  test  would  have  to  be  made,  and  the  boldest  can- 
not affirm  that  it  has  been  made. 

It  is  also  to  be  regretted  that  a  number  of  serious 
works  which  have  perforce  cost  great  effort  have  consid- 
ered it  obligatory  to  take  as  their  basis  a  philosophic 


§3,  JURIDICAL  CATEGORIES  441 

theory  so  completely  untenable.  They  lose  thereby  a 
great  part  of  their  value. 

Here  is,  for  example,  a  young  lawyer  who  is  very  con- 
scientious and  zealous  in  his  devotion  to  science.  He 
wishes  to  know  the  future  of  private  property,  and,  up  to 
a  certain  point,  how  legitimate  and  useful  it  is.  With 
this  in  view,  he  has  recourse  to  historical  observation.  He 
believes  that  by  a  rather  superficial  examination  he  will 
establish  the  fact  that  from  the  beginning  of  feudalism 
down  to  the  present  time  and  particularly  during  the  last 
hundred  years,  the  rights  of  property  owners  have  be- 
come more  and  more  impeded.  What  value  has  the  es- 
tablishment of  this  fact  for  foresight  into  the  future,  for 
appraisement  of  the  utility  or  understanding  of  the  con- 
struction of  our  institution  ?  None  of  any  kind.  Changes 
there  will  be  no  doubt;  but  no  one  knows  in  what  direc- 
tion ;  and  if  the  long  labor  has  no  other  aim  than  to  settle 
us  on  this  point,  it  is  totally  useless. 

Let  us  end  by  stating  that  in  all  times,  good  and  bad 
observations  have  been  possible;  and  that  we  may  well 
look  to  the  future  for  well-conducted  experiments  and 
observations.  In  the  meantime,  let  us  seriously  mistrust 
pseudo-experimental  sciences. 

§  3.  Juridical  Categories.  We  shall  call  categorical 
truths  those  which  are  capable  of  being  understood  apart 
from  every  experiment,  through  intellectual  effort  alone. 
Above  the  physical  world,  they  exist  prior  to  knowledge, 
and  without  them  no  knowledge  would  be  possible.  Al- 
though they  are  forms  of  thought,  they  are  independent 
of  our  cerebral  constitution  and  of  our  psychology.  We 
arrive  at  a  knowledge  of  categorical  truths,  we  do  not 
create  them.  They  are  determined  before  we  determine 
them.  There  is  nothing  in  them  of  the  subjective,  and 
although  devoid  of  corporeal  or  physical  reality,  they 
possess  an  abstract  reality  which  may  force  itself  upon 
logic  as  well  as  upon  experience. 


442  SCIENTIFIC  LAW  [CH.XIII 

That  such  truths  exist  cannot  be  doubted.  All  mathe- 
matical truths  are  of  this  nature;  inductive  as  well  as  de- 
ductive logic  possesses  likewise  the  same  characteristics. 
Is  the  expression  "categorical  truth"  satisfactory?  The 
categories  of  Aristotle  and  especially  those  of  Kant  — 
quantity,  quality,  relation,  modality  —  possess  the  char- 
acteristic of  being  forms  of  knowledge  which  are  prior  to 
all  knowledge,  which  existed  before  men  understood  them 
and  which  would  exist  therefore  if  men  did  not  under- 
stand them.  Through  an  extension  of  this  .terminology, 
but  without  binding  ourselves  to  any  system,  we  shall 
apply  the  term  "categorical"  to  every  truth  which  pre- 
sents these  characteristics.  At  the  same  time  we  fully 
recognize  that  if  this  same  word  has  been  used  in  a  like 
sense  in  other  works,  it  has  been  equally  used  in  very  dif- 
ferent senses. 

It  is  of  prime  importance  from  a  philosophical  and  log- 
ical point  of  view  to  consider  whether  categorical  ele- 
ments exist  or  do  not  exist  in  any  given  discipline.  In  so 
far  as  this  examination  has  not  been  made,  it  is  scarcely 
allowable  to  pretend  to  understand  the  nature  of  this  dis- 
cipline. Now  it  is  not  only  abstract  sciences  which  con- 
tain categorical  truths.  Certain  branches  of  human 
knowledge  which  affect  mankind  and  deal  with  certain 
elements  of  human  civilization  are  instances  of  this.  The 
science  of  language  may  be  cited  as  a  notable  example. 
Every  language  has  been  formed  under  the  influence  of 
extremely  varied  causes,  and  to  apprehend  some  of  these 
it  is  necessary  to  follow  the  course  of  history.  Every  vo- 
cabulary, whatsoever,  is  purely  arbitrary,  or,  if  it  is  pre- 
ferred, conventional,  in  this  sense,  that  there  is  no  ra- 
tional connection  between  an  idea  or  an  object  and  any 
sound  or  sign  whatever,  and  that  every  sound  is  equally 
qualified  to  represent  every  object.  Therefore  the  choice 
which  has  joined  a  name  to  the  thing  which  it  represents 
is  a  simple  one  due  to  varied  circumstances,  but  it  is  an 


§3]  JURIDICAL  CATEGORIES  443 

arbitrary  one.  The  French  word  "chapeau"  represents 
the  object  which  is  worn  upon  the  head  as  legitimately  as 
the  English  word  "hat."  In  this  respect  all  languages  are 
upon  the  same  footing.  It  is  not  the  same  with  rules  of 
grammar.  These  depend  upon  usage  no  doubt  but  fel- 
low more  or  less  closely  an  abstract  type,  a  form  of  pure 
grammar  which  represents  the  logical  functions  of  the 
language.  These  logical  functions  of  language,  man  dis- 
covers little  by  little  through  reflection;  every  dialect 
conforms  to  them  to  a  certain  extent  and  neglects  them 
to  a  certain  extent.  But  we  cannot  deny  them  an  exist- 
ence that  is  independent  of  human  psychology. 

If  one  wishes  to  reply  in  the  affirmative  to  the  question 
"Have  you  the  hat?"  the  indefinite  number  of  signs  may 
be  employed:  a  nod  of  the  head,  the  monosyllable  "Yes"; 
an  Englishman  would  say  "I  have,"  a  Frenchman  "Je 
1'ai."  But  none  of  those  who  formulate  these  different 
responses  answers  in  an  entirely  logical  fashion.  In  order 
to  understand  their  thought,  the  interrogator  will  have  to 
complete  the  work  and  establish  the  form,  "I  have  the 
hat."  The  pronoun  subject,  the  verb,  the  definite  article 
and  the  direct  object  complement  are  so  many  categorical 
elements  which  may  be  unrecognized  by  the  human  mind 
and  ignored  by  practical  grammars,  but  which  are  none 
the  less  necessary  to  the  expression  of  the  logical  thought. 

In  this  sense,  of  two  expressions  which  fulfill  identically 
the  same  purpose  socially  —  communication  of  a  thought 
with  all  its  shades  of  meaning  from  one  mind  to  another 
—  we  can  say  that  one  is  more  correct  than  the  other  if  it 
is  more  in  conformity  with  its  logical  function.  Thus  La 
Fontaine  entitles  one  of  his  fables  "Le  Lievre  et  la  Tor- 
tue,"  and  we  understand  even  without  reflection  that  this 
title  is  exactly  equivalent  to  that  of  the  Arab  fable-writer 
Loqman,  "Sulahfatun  wa  Arnabun,"  a  Hare  and  a  Tor- 
toise. But  it  will  be  agreed  that  this  last  form  is  more 
correct,  for  at  the  time  when  the  title  of  the  fable  is  an- 


444  SCIENTIFIC  LAW  [Cn.XIIl 

nounced,  the  hare  and  the  tortoise  in  question  are  by  no 
means  determined  as  far  as  we  are  concerned. 

Just  as  the  logical  and  categorical  functions  of  lan- 
guage are  independent  of  its  social  functions,  so  that  the 
grammars  of  very  different  dialects  present  them  only  in 
a  mutilated  and  fragmentary  form,  so  do  the  logical  and 
categorical  functions  of  law  appear  in  the  various  civili- 
zations in  a  form  that  is  mutilated,  fragmentary  and  in- 
dependent of  its  social  functions.  A  comparison  between 
these  two  disciplines  seems  to  me  the  best  means  of 
throwing  into  relief  the  idea  of  the  categorical  in  law. 
For  law,  like  language,  is  composed  of  purely  conven- 
tional elements  and  of  logical  elements.  These  logical 
elements,  the  practical  lawyer  in  different  countries  may 
or  may  not  understand.  But  just  as  the  perfect  sense  of 
a  phrase  may  be  rendered  only  by  pure  grammar,  so  the 
perfect  sense  of  a  juridical  precept  may  be  established 
only  by  conforming  to  the  categorical  principles  of  the  law. 

But  the  science  of  law  is  more  complex  than  that  of 
language,  and  this  is  why  the  latter  is  particularly  well 
suited  in  many  respects  to  explain  the  former.  Juridical 
science  is  composed  of.  multiple  elements  of  which  one 
may  disengage  the  following,  though  the  list  is  not  com- 
plete: social  aims  (institutions),  artificial  technique  (con- 
struction), pure  logic  (categories),  and  metaphysics  (legal 
philosophy  or  the  idea  of  right) .  These  modes  of  thought 
relating  to  the  law  are  of  such  a  different  nature  that 
their  mingling  and  confusion  in  a  discussion  or  in  the  ex- 
position of  a  system  renders  the  whole  absolutely  incom- 
prehensible. That  is  why  it  is  so  difficult  to  define  the 
scope  and  meaning  of  so  many  works  on  juridical  theory 
and  dogmatics. 

During  years  and  years  of  reading  of  works  on  abstract 
law  in  which  it  was  certainly  permissible  to  hope  to  find 
some  true  legal  philosophy,  I  have  felt  myself  bandied 
about  between  admiring  belief  and  the  most  complete 


§3]  JURIDICAL  CATEGORIES  445 

scepticism.  Some  particular  idea,  assertion  or  discussion 
would  appear  to  me  most  sound  and  of  enduring  interest, 
some  other  idea,  assertion  or  discussion  presented  in  the 
same  work  under  the  same  form  and  with  just  as  much 
insistence,  nothing  more  than  empty  verbiage.  I  often 
asked  myself  whether  the  evident  vacuity  of  certain  pas- 
sages ought  to  draw  in  its  train  the  condemnation  en  masse 
of  the  whole,  or  if  the  evident  interest  of  certain  other 
passages  ought  to  entail  a  general  adherence  which  it 
seemed  to  me  difficult  to  accord. 

These  were  only  personal  impressions.  I  am  now  con- 
vinced that  a  great  wealth  of  ingenuity  and  subtlety  may 
be  expended  without  advancing  by  a  single  step  the 
knowledge  of  the  nature  of  law,  if  one  persists  in  mixing 
up  and  treating  by  the  same  processes  ideas  that  logi- 
cally have  nothing  in  common.  Among  the  distinctions 
which  it  is  well  to  make,  that  of  the  juridically  categor- 
ical is  one  of  the  most  delicate  and  important.  More- 
over, it  must  be  recognized  that  if  this  distinction  is  not 
yet  classic,  numerous  thinkers  have  labored  to  disengage 
it  without  perhaps  having  yet  made  it  sufficiently  obvious. 

I:  Categorical  Ideas  in  Juridical  Literature.  A  certain 
ength  of  time  is  necessary  to  the  human  mind  before  it 
can  understand  how  it  should  approach  the  various  prob- 
lems of  knowledge.  Very  often,  it  makes  the  mistake  of 
trying  to  decide  by  reflection  or  discussion  questions  upon 
which  observation  and  experience  alone  can  teach  it. 
Less  often,  but  often  also,  it  asks  of  experience  what  ex- 
perience cannot  give  or  can  give  only  with  difficulty. 

Likewise  one  sometimes  sees  the  different  disciplines 
change  their  methods.  Very  often  after  arguing  at  ran- 
dom upon  problems  insoluble  by  reason,  one  perceives 
that  it  is  of  much  more  value  to  consult  positive  facts, 
and  the  ex]X?rimental  method  is  substituted  for  the  a 
priori.  The  reverse  case,  the  substitution  of  the  a  priori 
for  the  experimental  method,  is  more  unusual,  though  it 


446  SCIENTIFIC  LAW  [CH.XIII 

may  occur  also.  Mathematics  may  be  cited  as  an  in- 
stance of  the  latter;  also  the  study  of  juridical  categories, 
which  though  still  confused  has  nevertheless  been  pur- 
sued for  a  certain  length  of  time  under  various  names. 

It  is  very  probable  if  not  certain,  that  the  mathemat- 
ical sciences  have  resulted  from  experience,  a  fact  which 
nevertheless  does  not  change  their  nature.  Even  in  our 
day,  many  people  who  are  not  very  well-grounded  in  its 
principles,  solve  problems  by  measuring  a  figure  or  by 
trying  in  turn  a  certain  number  of  solutions  to  see  if  they 
are  correct.  Such  groping  is  nothing  but  experimenting. 
Mathematicians  say  that  a  purely  experimental  system  of 
geometry  is  imaginable.  In  it  the  relations  between  the 
hypothenuse  of  a  right-angled  triangle  and  its  other  sides 
would  be  established  by  carefully  measuring  the  sides  of 
a  great  number  of  right-angled  and  non-right-angled  tri- 
angles. A  very  correct  calculation  might  be  possible  by 
considering  mathematical  truths  as  simple  probabilities 
based  upon  induction.  But  for  a  long  time  they  have 
been  known  to  be  necessary  and  objective  truths. 

Juridical  categories  have  had  another  difficulty  in  ex- 
tricating themselves  from  the  experimental  method.  Have 
they  in  fact  succeeded  in  doing  so?  If  there  exists  any 
mathematics  of  law,  it  would  remain  unnoticed  a  long 
time,  for  a  number  of  reasons.  It  is  one  of  the  most  secret 
and  modest  elements  of  juridical  science.  Its  direct  prac- 
tical interest  is  nil;  and  if  it  is  of  a  nature  to  interest, 
from  the  higher  point  of  view  of  true  philosophy,  those 
who  like  to  delve  into  the  enigmas  of  abstract  thought 
and  pure  logic,  it  is  devoid  of  interest  for  the  practitioner, 
the  politician  or  the  moralist.  Not  one  of  these  persons 
dreams  of  propounding  to  himself  this  question :  What  is 
the  logical  nature  of  the  human  thoughts  whose  synthesis 
constitutes  the  law?  Philosophers  and  theologians  claim 
the  right  to  judge  between  institutions,  to  furnish  a  cri- 
terion by  which  to  separate  the  good  and  the  bad.  Jurid- 


§3J  JURIDICAL  CATEGORIES  447 

ical  philosophy  has  remained  for  a  long  time  a  justifica- 
tion or  a  criticism  of  institutions,  either  the  present  or  the 
past,  or  those  hoped  for  or  dreaded  in  the  future.  Posi- 
tive and  natural  law  march  side  by  side. 

In  the  eighteenth  century  the  best  minds  were  hoping 
that  a  system  of  legal  metaphysics  might  be  established 
which  would  be  as  certain  as  that  of  mathematics.  "To 
assert  that  Law  (Droif)  did  not  exist  before  laws  (lots, 
enacted  laws),"  said  Montesquieu,  "is  to  claim  that 
before  a  circle  had  ever  been  drawn  all  the  radii  were  not 
equal."1  This  remark,  which  would  have  been  quite  true 
applied  to  abstract  juridical  form,  was  evidently  false 
when  applied  to  the  substance  or  content. 

However,  there  have  been  in  every  age  certain  minds 
which  have  had  a  more  positive  tendency,  —  the  tendency 
to  "dispense  with  natural,  desirable  or  divine  law  as  some- 
thing pertaining  to  religion,  dealing  with  what  ought  to 
be  and  not  with  what  is;  and  to  seek  in  observation  ju- 
ridical realities  and  general  ideas  that  are  capable  of 
making  the  true  nature  of  law  understood.  Austin  gives 
credit  to  Hobbes  for  having  laid  the  foundation  of  a  sys- 
tem of  philosophy  of  positive  law,  credit  which  is  perhaps 
not  entirely  deserved.  Did  not  the  philosopher  of  the 
seventeenth  century  wish  for  exactly  that  thing  to  be 
done  which  was  done  by  the  jurist  of  the  nineteenth  cen- 
tury? This  is  not  absolutely  certain,  but  the  kinship  be- 
tween the  two  minds  is  undeniable. 

(1)  Austin's  "Lectures  on  Jurisprudence  or  the  Philos- 
ophy of  Law,"  published  in  1830,  constitute  a  first  and 
solid  analysis  of  abstract  legal  science.  Before  entering 
upon  his  teaching,  the  celebrated  English  professor  had 
gone,  in  full  intellectual  maturity,  to  put  himself  in  touch 
with  German  science.  He  preserves  none  the  less  an  en- 
tirely English  precision  of  thought  which  connects  him 
with  the  philosophers  of  his  own  country.  Thus  in  1819, 

»  "L'Esprit  des  lois."  bk.  I.  ch.  I. 


448  SCIENTIFIC  LAW  [CH.XIII 

Hugo  had  published  a  "  Lehrbuch  des  Naturrechts,"  which 
he  presented  as  a  philosophy  of  positive  Law,  "als  einer 
Philosophic  des  positiven  Rechts."  While  he  appreciates 
this  work  thoroughly,  Austin  nevertheless  affirms  that  it 
constantly  confuses  positive  and  desirable  law,  and  that 
an  absolute  distinction  between  the  two  ideas  is  the  first 
rule  which  he  imposes  upon  himself  and  intends  to  follow 
faithfully. 

In  fact,  the  principal  aim  of  his  work  and  its  chief 
claim  to  originality  is  to  rid  the  exposition  of  positive  law 
of  every  element  of  criticism  and  every  judgment  of 
value.  He  wishes  to  make  the  law  known  just  as  it  is, 
whether  good  or  bad,  and  not  what  the  law  would  be  if  it 
were  good:  "Law  as  it  must  be,  be  it  good  or  bad,  rather 
than  law  as  it  must  be,  if  it  be  good. " 

On  the  other  hand,  he  tries  to  study  positive  law  in 
general,  and  not  one,  two,  or  more  systems  of  positive 
law  in  particular.  The  general  nature  of  his  statements 
gives  them  a  philosophic  character  and  they  remain  posi- 
tive statements  purged  of  all  arbitrary  evaluation.  As 
for  natural  law,  which  he  prefers  to  call  divine  law,  Aus- 
tin does  not  contest  its  value.  It  is  well  to  study  it  in  its 
own  time  and  place  and  by  its  own  methods.  In  order 
to  avoid  any  confusion,  he  divides  the  whole  of  juridical 
science  into  three  distinct  disciplines : 

(a)  Study  of  the  law  as  it  ought  to  be  to  be  right;  nat- 
ural, desirable  or  divine  law. 

(b)  Study  of  particular  positive  laws  as  they  perform 
or  have  performed  their  functions  in  every  legal  system. 

(c)  Study  of  positive  law  in  general,  general  jurispru- 
dence, or  philosophy  of  positive  law.     It  is  to  this  last 
branch  that  he  devotes  his  efforts. 

However  praiseworthy  this  first  effort  at  analysis  may 
be,  it  does  not  suffice  to  give  us  an  understanding  of  the 
true  scope  of  Austin's  work.  Upon  what  logical  basis  is 
it  established?  Is  it  a  work  of  observation,  or  does  it 


§  3  ]  JURIDICAL  CATEGORIES  449 

follow  the  a  priori  method?  In  drawing  a  general  picture 
of  law  in  all  countries  and  at  all  times,  has  the  scholarly 
Englishman  performed  the  work  of  an  observer?  Did  he 
begin  by  gathering  together  the  maximum  amount  of  in- 
formation upon  every  civilization  accessible  to  him?  Did 
he  disentangle  the  constant  from  the  accidental?  Are  the 
abstract  juridical  elements  which  he  presents  to  us  only 
generalizations  of  concrete  facts,  the  representation  of 
real  life  according  to  some  particular  scheme?  Either 
belief  or  doubt  on  these  questions  is  permissible. 

Belief,  because  at  first  sight,  observation  seems  the 
normal  and  indeed  the  sole  course  in  a  study  of  positive 
law.  Just  as  observation  alone  can  inform  us  concerning 
the  concrete  content  of  a  particular  positive  law,  so  does 
a  recourse  to  observation  seem  indispensable  in  establish- 
ing a  general  Law  which  must  conform  to  all  particular 
Laws.  Moreover,  since  the  author  does  not  indicate 
that  there  are  other  logical  means  of  discovering  the 
truth,  one  is  forced  to  the  conclusion  that  none  are  known 
to  him. 

On  the  other  hand,  Austin  affirms  that  he  depicts  not 
only  the  law  as  it  is,  but  "as  it  necessarily  is,"  —  "law  as 
it  must  be."  Therefore  certain  elements  of  the  law  im- 
pose themselves,  cannot  be  other  than  they  are.  The 
assertion  of  such  an  important  fact  demands  explanations 
which  it  seems  to  me  the  author  avoids.  What  is  the 
nature  of  this  necessity  by  virtue  of  which  certain  legal 
principles  impose  themselves?  How  is  it  to  be  attained? 
How  is  it  to  be  proved?  Is  it  observation  that  has 
revealed  it?  Is  it  logic?  Austin  is  not  definitely  settled 
upon  this  important  point  of  the  science  which  he  ex- 
pounds. 

In  reality,  the  author  does  not  render  a  very  strict  ac- 
count to  himself  of  his  method.  He  had  studied  very 
conscientiously  a  certain  number  of  legal  systems  and  it  is 
in  them  that  he  discovered  the  point  of  departure  for  his 


450  SCIENTIFIC  LAW  [CH.XIII 

generalizations.  His  documentation  was,  however,  a 
trifling  basis  for  his  affirmation  of  any  juridical  necessity 
whatever  by  virtue  of  his  experience  alone.  An  unex- 
pressed and  perhaps  unconscious  logical  operation  gives 
him  a  presentiment  of  a  truth  beyond  that  of  observa- 
tion, the  categorical  truth  upon  which  rests  the  first  ele- 
ment of  the  law. 

We  have  taken  Austin  as  an  example  because  of  the 
value  of  his  work  and  the  accuracy  of  his  thought.  But 
the  legal  philosophers  in  whose  systems  observation  and 
logic  "a  priori"  are  in  more  or  less  happy  accord,  with- 
out one's  knowing  exactly  what  to  rely  upon,  are  not 
lacking  at  any  period. 

(2)  Roguin's  "R£gle  de  Droit."  In  this  progress  from 
the  inductive  towards  the  "a  priori,"  let  us  make  a  great 
step  forward  and  take  as  a  type  the  subtle  work  of  Pro- 
fessor Roguin,  "Regie  de  Droit."  Among  the  numerous 
volumes  which  treat  of  juridical  dogmatics,  this  one  is 
particularly  valuable  from  our  point  of  view. 

Roguin's  "Regie  de  Droit"  has  already  run  a  course 
of  twenty-eight  years.  Welcomed  from  its  publication 
with  particular  interest  in  France  and  other  Latin  coun- 
tries, its  direct  and  indirect  influence  has  been  quite  con- 
siderable. In  many  quarters  it  has  given  an  entirely 
new  mental  direction.  It  does  not  pertain  to  us  to  point 
out  its  various  merits  nor  even  to  discuss  or  evaluate  as  a 
whole  the  conceptions  which  it  contains.  We  are  not 
fashioning  here  either  juridical  theory  or  dogmatics.  We 
desire  simply  to  state  accurately  the  nature  of  the  thoughts 
or  the  affirmations  contained  in  particular  works,  in  their 
relation  to  general  logic. 

Now  the  introduction  of  the  "Regie  de  Droit"  throws 
this  last  question  into  sharp  relief.  It  is  devoted  to  the 
classification  of  disciplines,  and  to  the  nature  of  pure  jurid- 
ical science.  This  little  treatise  has  for  its  precise  object 
the  solving  of  the  problem  with  which  we  are  occupied, 


§3]  JURIDICAL  CATEGORIES  451 

and  a  resume  of  this  kind,  intended  to  connect  juridical 
logic  with  a  system  of  general  logic,  is  a  rarity  greatly  to 
be  appreciated. 

Since  the  appearance  of  this  work,  the  eminent  jurist 
has  been  devoting  his  attention  to  the  lofty  questions  of 
pure  law.  Upon  the  abstract  questions  of  law,  his  ideas 
have,  to  be  sure,  developed  along  lines  which  we  cannot 
study  here,  as  the  volume  "Questions  generates,"  an- 
nounced by  the  author,  has  not  yet  appeared.  It  is  not, 
therefore,  the  ideas  of  the  author,  but  the  ideas  of  the  work 
which  we  shall  examine.  They  are  interesting  to  us  in 
themselves,  since  they  would  no  longer  correspond  exactly 
to  his  thought  today. 

In  Roguin's  "  Regie  de  Droif'there  is  nothing  of  Austin's 
ambiguity.  In  it,  pure  juridical  science  is  frankly  given 
as  "a  priori"  science.  There  observation  plays  the  en- 
tirely secondary  part  of  a  stimulant,  of  something  that 
evokes  effort.  No  doubt  the  knowledge  of  the  practical 
legislative  dispositions  of  a  certain  country  is  useful  in 
the  discovery  of  pure  law;  indeed  such  a  discovery  is  only 
made  then  through  the  juxtaposition  of  a  certain  num- 
ber of  laws.  But  it  is  logic  alone  which  can  decide  when 
a  specific  proposition  is  necessary  and  when  it  will  per- 
force be  discovered  in  every  possible  and  imaginable 
legal  system.  Whatever  the  jurist,  as  such,  derives  from 
observation  might  just  as  well  be  derived  from  his  imagi- 
nation or  his  fancy.  Several  comparisons  between  pure 
law  and  mathematics  give  us  the  impression  that  from 
the  author's  point  of  view  the  truths  of  pure  law  are 
very  much  of  the  nature  of  those  we  call  categorical 
truths. 

However,  this  is  not  absolutely  certain.  Roguin  fol- 
lows the  original,  ingenious  and  subtle  system  of  logic  de- 
veloped by  the  philosopher  Naville  under  the  title,  "  De  la 
classification  des  Sciences."  Pure  science  is  there  called 
theorematics.  It  should  be  pursued  under  the  form  of 


452  SCIENTIFIC   LAW  [Cn.XIII 

theorems,  and  should  have  for  its  object  "to  seek  the  con- 
sequences contained  by  implication  in  the  premises  which 
it  states."  This  theorematics  seems  —  at  least,  to  me  —  to 
be  of  a  rather  ambiguous  character.  It  somewhat  resem- 
bles simple  deduction,  where  a  formula  is  stated  in  order 
to  get  out  of  it  what  has  already  been  put  into  it.  No 
doubt,  this  process  may  also  serve  to  reveal  categorical 
truths,  provided  there  are  any  to  be  discovered.  One 
may  thus  establish  by  deductions  the  relation  between 
the  hypothenuse  and  the  other  sides  of  a  right-angled 
triangle,  because  the  relations  of  geometric  figures  exist 
categorically.  But  if  the  law  has  only  a  conventional  ex  - 
istence,  all  the  definitions  which  we  give  it  will  be  con- 
ventional. From  such  definitions  we  shall  necessarily  be 
able  to  draw  out  what  we  have  put  in,  but  nothing  more. 
Thus  theorematics  may  quite  as  well  cover  a  truly  scien- 
tific work  as  one  simply  tautological.  Moreover,  in  order 
to  disengage  the  necessary  elements  of  law,  Roguin  seems 
to  me,  in  the  course  of  his  work,  to  proceed  neither  by  de- 
duction nor  theorem,  but  by  the  path  of  evidence.  Now 
the  axiom,  or  the  self-evident  statement,  is  the  basis  of  all 
elementary  categorical  truths,  as  we  shall  have  occasion 
to  show,  so  that  in  spite  of  the  author's  precision  of 
thought,  there  exists  in  the  "Regie  de  Droit"  a  certain  ob- 
scurity in  regard  to  the  relations  between  pure  law  and 
the  principles  of  logical  knowledge. 

(3)  Recent  Works  on  Juridical  Categories.  In  a  number 
of  very  recent  works,  only  a  few  of  which  we  shall  attempt 
to  mention,  we  shall  find  the  idea  of  "juridical  category" 
more  fully  emphasized  and  the  word  itself  employed 
sometimes  in  almost  the  same  sense  that  we  give  it  here. 
In  the  front  rank  we  place  that  of  A.  Reinach:  "Die 
apriorischen  Grundlagen  des  burgerlichen  Rechtes"  which 
has  found  a  solid  basis  in  Husserl's  philosophy.  It  is,  in 
fact,  this  philosophy  which  has,  it  seems  to  me,  best 
solved  the  problem  of  knowledge,  that  is  to  say,  the  rela- 


§3]  JURIDICAL  CATEGORIES  453 

tionship  between  experience  and  the  a  priori.  One  may 
also  consider  as  very  important  for  the  elaboration  of  this 
special  point  of  juridical  science,  Djuvara's  thesis,  "Des 
Fondements  du  Phenomene  juridique.  Quelques  reflexions 
sur  les  principes-logiques  de  la  connaissance  juridique." 

These  two  authors  state  very  clearly  the  same  princi- 
ples of  categorical  law,  likewise  its  logical  value  and  its 
relations  with  knowledge  in  general.  But  when  it  is  a 
question  of  applying  the  theory  to  practice  and  of  disen- 
gaging the  form  from  the  substance,  questions  of  con- 
struction and  especially  those  of  metaphysics  become  con- 
fused with  questions  of  pure  logic.  There  is  a  great  temp- 
tation to  introduce  among  these  categories  which  are  pure 
forms  of  pure  functions  of  the  abstract  intelligence,  some 
vague  moral  or  social  attribute,  a  microbe-like  germ  of 
judgment  of  value  which  wisely  developed  would  hatch 
out  a  full  system  of  positive  rules  of  conduct.  The  jurid- 
ical vocabulary  lends  itself  to  this  particularly  well:  thus 
the  word  "obligation"  may  be  employed  in  formal  logic 
to  denote  a  particular  juridical  situation  without  involv- 
ing the  idea  of  any  social  or  moral  duty  whatsoever.  But 
if  it  is  said  that  the  "obligated  person"  ought  to  fulfill 
certain  oaths,  would  do  well  to  fulfill  them,  commits  a  fault 
if  he  does  not  fulfill  them,  here  the  wolf  is  let  into  the 
sheepfold  and  pure  science  will  be  devoured  entirely  by 
natural  law.  In  the  same  way,  the  word  "person"  in 
pure  logic  denotes  an  abstract  being  capable  of  perform- 
ing a  certain  abstract  part.  This  being  is  devoid  of  any 
physical,  psychological  or  moral  attribute.  If  we  attrib- 
ute to  it  any  quality  whatsoever,  if  we  make  of  it  a 
human  being,  free,  reasonable  and  capable  of  exercising 
its  own  will,  we  go  completely  beyond  the  fact  of  cate- 
gorical science,  in  order  to  yield  ourselves  to  purely 
arbitrary  constructions. 

Now  Djuvara  puts  "obligation,"  that  is,  the  mandate 
of  moral  duty  as  an  idea  a  priori,  and  the  idea  of  liberty 


454  SCIENTIFIC  LAW  [CH.XIII 

as  a  condition  of  law.  Reinach  makes  the  idea  of  obliga- 
tion spring  from  the  promise.  Thus,  from  my  point  of 
view,  they  erect  metaphysical  or  constructive  edifices 
upon  categorical  foundations. 

This  is  almost  what  Binder  charges  Stammler  with,  in 
an  extremely  lucid  article.  The  ideas  which  he  develops 
in  this  article  and  in  his  book,  "  Rechtsbegriff  und  Rechts- 
idee,"  seem  to  me  to  approach  very  near  the  culminating 
point  of  pure  juridical  logic.  Nevertheless,  his  extremely 
perspicacious  method  and  his  fidelity  to  the  doctrines  of 
Kant  lead  him  to  deny,  or  to  appear  to  deny,  the  science 
which  he  has  succeeded  with  so  much  difficulty  in  separat- 
ing from  nearly  all  foreign  elements. 

The  categorical  idea  of  law  is  a  pure  function  of  the 
abstract  logical  intelligence.  It  is  devoid  of  any  concrete, 
physical,  psychological,  moral  or  metaphysical  element. 
But  it  is  very  rich  in  formal  content  and  is  susceptible  of 
infinite  development.  The  category  ' '  quantity ' '  is  equally 
devoid  of  all  concrete  content;  but  it  contains  in  itself 
"unity,"  "plurality"  and  "totality."  Unity  in  its  turn 
comprises  all  the  fractional  divisions  which  compose  it- 
Plurality  comprises  duality,  trinity,  and  so  on.  In  the 
same  way,  the  categorical  idea  of  law  comprises  juridical 
fact,  the  object  of  law,  the  injunction,  the  sanction,  and 
so  on.  Each  of  these  notions  has  a  formal  content 
susceptible  of  being  analyzed  "ad  infinitum." 

Through  its  delicacy  and  its  abstract  character,  the 
nature  of  pure  logic  is  one  of  the  questions  upon  which  it 
is  most  difficult  not  only  to  be  agreed  upon  but  to  be 
understood.  If  two  persons  have  not  followed  the  same 
road  toward  the  same  abstractions,  they  may  speak  the 
same  language  while  at  the  very  antipodes  of  thought, 
and  different  languages  while  very  near  together.  One 
might  try  the  following  means  of  testing,  which  seems  to 
me  quite  convincing.  Before  entering  upon  a  discussion 
pn  a  point  of  logic,  propound  this  question  to  one's 


§3]  JURIDICAL  CATEGORIES  455 

antagonist:  "Would  pure  juridical  logic  exist  on  the  same 
basis  if  humanity  did  not  exist?"  Some  will  answer:  "If 
humanity  did  not  exist,  there  would  be  no  Law  and  accord- 
ingly no  juridical  logic."  Those  who  make  this  reply 
have  not  a  ripe  enough  or  an  abstract  enough  mind  to 
understand  the  nature  of  the  categorical  in  law  or  else- 
where. Those  who  respond  in  the  affirmative  have  al- 
ready understood  it. 

II:  Juridical  Categories  and  the  Problem  of  Knowledge. 

(1)  Nature  of  logic.  As  a  matter  of  fact,  that  which 
characterizes  every  logical  science  is  the  authority  by  vir- 
tue of  which  it  dominates  the  mental  activity  of  man,  as 
well  as  the  manners  and  institutions  of  human  collectiv- 
ities. Logic  is  the  agreement  between  truth  and  human 
thought.  It  is  accordingly  above  and  beyond  this  thought 
and  cannot  be  absorbed  into  it  without  losing  its  entire 
value  and  even  its  whole  existence.  If  the  ideas  of  iden- 
tity, causality,  etc.,  and  all  the  mathematical  sciences 
were  not  the  cerebral  translation  of  principles  which  are 
independent  of  our  brain,  they  would  be  totally  devoid 
of  objective  force  and  usefulness.  Anything  that  can  be 
traced  back  entirely  to  human  functions  (whether  physio- 
logical, intellectual,  sentimental  or  social)  no  longer  has 
in  it  any  element  of  logic.  A  system  of  abstract  law  which 
would  exist  only  through  man  and  for  man  would  have  to 
be  classed  among  variable,  relative  and  descriptive  dis- 
ciplines and  not  among  those  which  are  invariable  and 
normative. 

The  conflict  between  logicians  and  psychologists,  be- 
tween those  who  try  to  trace  all  psychology  to  logic  and 
those  who  take  the  reverse  course,  cannot  detain  us  here, 
but  if  it  is  allowable  to  make  any  distinction  whatever 
between  wisdom  and  folly,  the  domain  of  the  two  sciences 
is  easy  to  define  accurately. 

Psychology  is  nothing  more  than  the  description  of 
mental  activity  taken  at  any  particular  moment.  Logic 


456  SCIENTIFIC  LAW  [CH.XIII 

is  the  criticism  of  this  mental  activity,  the  fact  of  recog- 
nizing that  certain  acts  of  the  mind  are  in  accordance 
with  external  reality  and  certain  others  are  not. 

A  mind  that  is  thinking  is  a  boiling  cauldron.  The 
most  fantastic  ideas  may  be  intermingled  with  the  most 
commonplace  without  any  apparent  order  or  reason;  and 
this  is  quite  as  true  of  a  mind  which  is  working  as  of  one 
which  is  wandering.  In  this  sense,  there  is  no  method  of 
work.  Thoughts  do  not  place  themselves  under  the  yoke 
of  logic  for  the  purpose  of  ploughing  a  straight  furrow. 
Ideas  come  to  the  worker  urged  from  within,  and  many 
mathematicians  have  often  recounted  that  the  solution  of 
a  problem  sought  arduously  but  vainly  while  waking, 
came  to  them  entirely  of  itself  during  sleep. 

The  description  of  this  mental  creation  pertains  to  psy- 
chology ;  but  the  evaluation  of  the  various  thoughts  which 
cross  the  mind  is  performed  by  objective  rules,  which  con- 
stitute logic.  All  men  think  in  about  the  same  fashion, 
and  the  photographs  of  an  instant  of  the  intellectual  life 
of  a  fool,  a  dreamer  and  a  scholar  —  if  it  were  possible  to 
take  them  —  would  be  perhaps  completely  indistinguish- 
able from  one  another.  But  there  are  minds  which  criti- 
cize their  first  evaluations,  others  which  criticize  their 
first  criticism,  others  still,  this  second  criticism,  and  so  on. 
At  each  of  these  stages  of  logical  labor,  thought  becomes 
more  methodical,  more  abstract.  The  product  of  its 
labor  takes  a  form  that  is  more  subtle,  and  less  concrete, 
less  accessible  to  the  public,  but  also  more  objective  and 
more  general. 

Logic  which  is  based  upon  objective  rules  superior  to 
the  human  intelligence  is  clearly  distinct  from  psychology, 
which  consists  entirely  of  the  description  of  what  takes 
place  in  the  human  mind.  Thus  the  rules  of  positive  law 
are  made  by  man  and  for  man  and  become  partly  ab- 
sorbed in  human  psychology;  juridical  categories,  if  they 
exist,  are  of  the  same  nature  as  rules  of  logic,  and  that 


§3]  JURIDICAL    CATEGORIES  457 

which  constitutes  their  value  is  independent  of  the  struc- 
ture of  the  human  brain. 

(2)  Nature  of  Evidence.  This  objective  value  of  logic 
is  as  certain  as  a  proposition  may  be  certain,  but,  let  it  be 
understood,  no  more  so. 

What  is  the  absolute  value  of  human  thought?  The 
problem  is  inapproachable,  through  the  fact  that  this 
absoluteness  with  which  our  thought  would  have  to  be 
compared  is  totally  inaccessible.  What  is  the  value  to  us 
of  our  own  thought?  This  is  the  sole  problem  which  can 
be  propounded  upon  the  nature  of  knowledge. 

It  is  very  certain  that  man  can  reason  only  with  his 
brain;  that  all  of  his  logic  and  his  experience  is  domi- 
nated by  a  tremendous  doubt,  that  of  its  own  value.  All 
certainty  is  floating  in  an  infinite  obscurity  which  one 
must  not  dream  at  all  of  dissipating.  From  the  absolute 
point  of  view,  every  human  affirmation  is  purely  condi- 
tional and  implies  a  certain  degree  of  brain  power  in  him 
who  affirms  or  reflects.  It  is  thus  with  the  simplest  and 
the  most  material  observation  as  well  as  with  the  most 
complex  calculation.  But  among  human  beliefs  based 
upon  physical  observation  as  well  as  upon  logical  calcu- 
lation, there  are  those  that  are  acquired  only  through 
more  or  less  protracted  labor,  in  the  course  of  which 
haste,  distraction,  or  insufficiency  of  documentation  may 
produce  mistakes.  If  these  beliefs  are  false,  the  brain 
which  affirms  them  is  not  for  that  reason  convicted  of 
any  lack  of  power.  There  are,  on  the  contrary,  statements 
of  physical  facts  and  elementary  logical  affirmations  which 
if  false  would  completely  invalidate  the  brain  power  of 
the  one  from  whom  they  emanated.  These  are  self- 
evident  truths. 

One  may  then  call  an  axiom  or  self-evident  proposition 
that  whose  falsity  would  lower  to  zero  the  intellectual 
force  of  the  person  who  formulated  it.  Thus  it  is  very 
commonly  said,  "If  what  I  say  is  not  true,  I  am  a  fool." 


458  SCIENTIFIC  LAW  [Cn.xm 

In  this  way  evidence  is  relative  to  each  individual  and  is 
not  demonstrated.  Those  who  have  not  the  same  points 
of  evidence  upon  a  given  subject  cannot  discuss  together, 
and  if  such  a  discussion  is  possible,  it  is  because  there  are 
collective  evidences  common  to  more  or  less  numerous 
groups.  The  scientific  development  of  the  mind  always 
has  the  effect  of  modifying  the  classes  of  "evidences." 
What  is  evident  to  a  rudimentary  mind  is  not  at  all  so  for 
the  cultivated  mind.  Besides,  the  latter  has  gained 
through  its  labor  some  certainties  which  were  formerly 
unknown  to  it. 

Evidence  may  result  from  observation  and  deduction. 
It  may  also  be  categorical.  Categorical  evidence  lays 
down  the  primary  ideas  without  which  all  thought  would 
be  impossible;  quantity,  quality,  relation,  and  modality. 
It  also  establishes  primary  relations  between  primary 
forms;  and  in  this  instance  it  is  termed  an  axiom,  e.g., 
the  principles  of  identity,  of  causality,  etc.  It  is  only 
through  evidence  that  we  can  distinguish  between  ex- 
perimental, deductive  and  categorical  truths.  A  system 
of  logic  might  be  imagined  in  which  mathematical  truths 
would  appear  as  subjective,  accidental  truths  and  truths 
of  simple  observation.  But  since  this  logic  would  no 
longer  have  the  same  points  of  evidence  as  our  own  logic, 
all  discussion  between  the  partisans  of  one  or  the  other 
would  be  useless,  as  each  would  consider  in  advance  that 
the  intellectual  worth  of  his  adversary  was  reduced  to 
zero. 

Ill :  The  First  Elements  of  Law.  Man  already  had  be- 
hind him  a  very  old  philosophical  and  a  very  old  juridical 
past  when  for  the  first  time  this  primordial  question  was 
propounded:  "What  is  law  from  the  philosophical  point 
of  view  and  what  are  its  elements? ' '  For  primitive  civiliza- 
tions and  practitioners  in  all  civilizations  care  little  about 
abstractions  and  still  less  about  the  philosophical  nature 
of  these  abstractions.  Besides,  as  it  very  often  happens, 


§3]  JURIDICAL  CATEGORIES  459 

the  primordial  question  has  been  propounded  last.  The 
philosophy  of  law  possessed  a  rather  rich  fund  of  diverse 
ideas  —  a  confused  mixture  of  beliefs,  reflections  and  ex- 
periences —  long  before  anyone  thought  seriously  of  justi- 
fying the  primary  idea  of  the  law  and  of  disengaging  its 
elements. 

The  history  of  the  development  of  juridical  thougnt, 
the  processes  by  which  it  has  grown  little  by  little  into 
self -consciousness,  is  of  great  interest;  but  this  interest, 
purely  historical,  cannot  be  of  any  use  in  determining  how 
the  idea  of  the  law,  having  once  attained  the  limit  of  its 
development,  can  be  justified  as  an  independent  idea,  or 
in  what  class  of  philosophical  truths  it  may  be  ranged. 

The  idea  of  law  may  be  apprehended  under  but  three 
logical  forms:  the  idea  of  observation,  the  idea  of  conven- 
tion, and  the  categorical  idea. 

(1)  Observation  as  the  Basis  of  Delimitation  of  Juridical 
Ideas.  Can  observation  fix  the  limits  of  the  idea  of  law 
and  distinguish  it  from  every  other  adjacent  idea? 

There  are  concrete  phenomena  of  social  life  which  we 
term  juridical,  and  there  are  others  to  which  we  do  not 
apply  this  qualification.  If  it  is  legitimate  to  make  the 
abstract  spring  from  the  concrete,  the  law  would  then  be 
the  specific  difference  between  these  two  groups  of  social 
facts,  one  juridical,  the  other  non- juridical.  The  char- 
acteristics of  constancy  which  would  always  be  established 
by  observation  to  exist  in  the  first  group  and  never  in  the 
second  group,  would  form  the  essence  of  the  law,  a  very 
definite  essence  and  one  established  upon  the  basis  of 
solid  observation. 

All  this,  however,  is  pure  illusion,  pure  tautology.  Our 
first  classification  into  "juridical"  and  "non-juridical" 
facts,  borrowed  from  everyday  language,  is  devoid  of  all 
scientific  value.  In  these  two  groups  born  of  the  chance 
development  of  terminology,  the  common  and  the  differ- 
entiating traits  may  be  purely  accidental  and  incidental. 


460  SCIENTIFIC  LAW  [CH.XIII 

To  obtain  an  experimental  idea  of  the  law,  it  would  be 
necessary  to  start  from  a  fact  of  experience,  and  we  can 
start  only  with  the  customary  language.  It  is  a  question 
of  drawing  inferences  from  positive  data  and  we  can  only 
graft  observations  upon  words.  We  have  distinguished 
social  facts  as  juridical  and  non- juridical;  but  this  dis- 
tinction is  purely  verbal.  Rationally,  in  order  to  dis- 
tinguish what  facts  are  juridical,  it  is  necessary  to  know 
first  what  law  is.  And  the  experimental  definition  of  law 
can  result  only  from  the  analytic  observation  of  juridical 
facts.  It  is  impossible  to  escape  from  this  vicious  circle. 
An  experimental  definition  of  the  law  is  radically  im- 
possible. 

(2)  Conventional  Formulas  as  the  Basis  of  Delimitation 
of  Juridical  Ideas.  But  it  is  evidently  possible  to  give  a 
conventional  definition  of  the  law.  In  logic  also  agree- 
ments form  laws  between  the  contending  parties.  Two 
or  more  dialecticians  may  decide  among  themselves  to 
choose  certain  social  facts  which  they  will  consider  as 
juridical  to  the  exclusion  of  others.  They  may  quite  as 
well  agree  to  term  juridical  those  facts  which  present  one 
or  more  essential  characteristics.  They  might  thus  for- 
mulate rules  of  this  kind:  "Every  juridical  fact  is  ac- 
companied by  command  and  eventually  by  sanction  on 
the  part  of  the  public  authorities." 

What  would  formulas  of  this  kind  drawn  up  by  agree- 
ment be  worth  from  a  logical  point  of  view?  They  sig- 
nify an  accord  of  thought  between  a  few  dialecticians,  at 
a  given  time.  But  this  accord  is  often  more  apparent  than 
real,  for  often  the  partisans  of  one  side  concede  a  formula 
because  they  do  not  see  all  of  its  consequences,  while 
those  of  the  other  side,  more  clear-sighted,  propose  the 
formula  because  it  is  a  good  means  of  forcing  their  op- 
ponents to  accept  at  the  end  of  the  discussion  what  they 
energetically  rejected  at  the  beginning. 

Here  we  find  the  tricks  of  the  rhetoricians.     They  are 


§3]  JURIDICAL  CATEGORIES  461 

quite  worthy  of  esteem,  and  the  divine  Plato  did  not  dis- 
dain them.  Often,  by  abusing  conventional  definitions, 
he  obliged  his  opponents  to  acknowledge  themselves  de- 
feated. But  in  pure  logic,  one  is  never  bound  by  its  con- 
ventions, and  he  who  sees  an  unforeseen  consequence 
arising  from  them  can  always  disentangle  himself.  Having 
adhered  to  a  definition  all  of  whose  consequences  he  did 
not  understand,  he  recognizes  his  opponent's  perspicacity. 
But  by  avowing  that  he  did  not  understand  the  full  scope 
of  what  he  was  led  to  say,  he  may  retrace  his  steps  and  the 
definition  falls  to  pieces  because  it  was  based  solely  upon 
his  consent  and  this  consent  was  based  on  error. 

Therefore,  any  work  built  upon  a  conventional  basis 
always  remains  purely  conventional.  It  can  never  change 
its  nature  and  the  least  contradiction  is  sufficient  to  re- 
duce it  to  nothingness.  Studies  of  pure  law  established 
upon  this  basis  would  be  almost  devoid  of  interest. 

(3)  Specificity  of  the  Law  as  a  Self -evident  Idea.  Through 
elimination,  the  solution  is  forced  upon  us.  The  speci- 
ficity of  the  law  is  a  categorical  truth,  or  it  is  nothing  at  all ; 
and  in  the  meaning  in  which  I  use  it,  it  is  categorical  in 
the  same  way  that  quality  and  quantity  are,  although 
more  restricted  in  scope.  It  plays  the  same  part  in  so- 
ciety that  the  verb  or  the  adjective  does  in  language. 
It  is  a  form  necessary  to  the  understanding  of  all  society, 
but  independent  of  any  concrete  association,  just  as  the 
idea  of  the  verb  is  independent  of  any  concrete  language. 

For  the  human  mind,  it  is  a  self-evident  idea.  One 
may  admit  or  not  admit  the  specific  quality  of  the  law; 
but  if  it  is  admitted,  no  other  philosophical  form  can  be 
given  to  it  except  that  of  a  categorical,  self-evident  truth. 
And  between  him  who  admits  it  and  him  who  rejects  it, 
no  discussion  upon  the  abstract  nature  of  law  is  possible. 

IV:  Delimitation  of  Juridical  Categories.  In  speaking 
of  the  lawmakers  of  ancient  civilizations,  assertions  of 
this  nature  are  frequently  made:  "They  confused  law  and 


462  SCIENTIFIC  LAW  [CH.XIII 

morality,"  or  "They  did  not  know  how  to  distinguish 
between  law  and  morality."  If  these  phrases  have  any 
meaning,  they  summarize  all  that  we  have  said  in  the 
preceding  paragraph,  for  they  indicate  an  inferiority  in 
the  logic  of  those  ancient  lawmakers,  just  as  they  might 
have  been  reproached  for  not  knowing  how  to  distinguish 
a  verb  from  a  substantive  or  how  to  count  up  to  a  hundred. 
If  the  specificity  of  the  law  were  purely  a  matter  of  con- 
vention, since  all  conventions  are  equal  from  the  logical 
point  of  view,  the  ancient  conceptions  could  not  be  in- 
ferior in  any  degree  to  modern  conceptions. 

The  specificity  of  the  law  is  therefore  the  first  cate- 
gorical truth.  This  specificity  is  assured  by  a  certain 
number  of  axioms  which  fix  the  essential  elements  of 
every  juridical  relation,  object  of  law,  command,  active 
or  passive  subjects,  etc.  The  distinction  between  jurid- 
ical functions  —  political,  legislative,  judiciary  or  doc- 
trinal; the  distinction  between  private  law,  public  law, 
criminal  law,  etc.,  the  distinction  between  real  rights  and 
personal  rights  —  all  of  these  form  just  so  many  branches 
of  the  categorical  syntax  of  the  law. 

We  throw  out  these  few  suggestions  regardless  of 
method  and  simply  by  way  of  example.  It  is  the  part  of 
the  legal  logician  to  present  them  in  a  well-ordered  system, 
and  we  know  that  if  this  task  is  not  yet  accomplished 
there  are  respectable  jurists  who  have  already  under- 
taken it.  Let  us  take  a  proposition  that  is  rather  complex 
and  evidently  not  to  be  grasped  easily  without  com- 
mentary, which  was  established  by  one  of  the  disciples 
of  Professor  Roguin :  "Every  relation  of  law  is  susceptible 
of  producing  a  new  one,  that  one,  a  third,  and  so  on  until 
the  sovereign  power  is  reached.  The  non-realization  of  the 
performance  (object)  of  the  primary  relation  becomes  the 
'  fact  submitted  to  the  law'  of  a  secondary  relation  whose 
performance  is  the  sanction  of  the  primary  relation."  1 

1  ROGER  SECRETAN,  "Theses  accessoires"  (1917). 


§3]  JURIDICAL  CATEGORIES  463 

Without  pronouncing  an  opinion  upon  the  substance  of 
this  thesis,  it  is  in  its  form  a  proposition  of  pure  juridical 
logic,  that  is,  according  to  my  idea,  a  proposition  of  a 
categorical  nature. 

Our  sole  intention  is  to  establish  the  existence  in  the 
law  of  a  certain  group  of  thoughts  of  an  entirely  special 
logical  nature.  But  in  works  on  juridical  dogmatics, 
these  elements  of  pure  logic  are  constantly  confused  with 
considerations  which  are  simply  metaphysical  or  con- 
structive. How  are  they  to  be  distinguished? 

(a)  The  categorical  is  a  pure  logical  form;  it  cannot 
contain   any   judgment   of   values.     It    can    furnish    at 
neither  short  nor  long  range  any  line  of  conduct  or  ele- 
ment of  evaluation.     The  ideas  of  justice,  moral  obliga- 
tion, duty  and  subjective  right  remain  entirely  foreign  to 
it  and  arise  from  metaphysics. 

(b)  The  categorical  cannot  depend  upon  any  conven- 
tional or  traditional  conception.     Are  real  rights  cate- 
gorically different  from  personal  rights?     To  solve  this 
question,  historical  precedents  should  be  avoided,  just  as 
it  is  totally  useless  to  study  the  language  of  negroes  or  of 
primitive  tribes  to  determine  whether  the  verb  is  logically 
different  from  the  substantive.     Many  civilizations  have 
not  distinguished  law  from  morality,   public  law  from 
private  law,  nor  criminal  law  from  civil  law,  but  this  fact 
in  nowise  affects  the  logical  value  of  these  distinctions. 

(c)  Finally,  since  the  categorical  is  the  abstract  form  of 
juridical  thought,  it  can  no  more  contain  a  concrete  psy- 
chological than  a  concrete  physical  element.     In  abstract 
juridical  logic,  a  milestone  may  be  an  owner;  a  log,  a 
king;  and  a  horse,  a  consul  of  Rome.     No  individual  qual- 
ity is  required  to  act  any  part,  since  it  is  a  question  of 
general  abstractions,  where  any  intervention  of  the  acci- 
dental would  result  in  irretrievable  degradation.     In  ab- 
stract juridical  logic,  Robinson  Crusoe  is  owner  of  his 
island  by  right  of  occupation,  even  though  this  title  is 


464  SCIENTIFIC  LAW  [CH.XIII 

totally  useless  to  him  since  no  one  can  recognize  nor  con- 
test this  right.  And  if  the  moon  is  inhabited,  the  people 
there  are  as  much  obliged  to  respect  my  ownership  as  are 
my  most  immediate  neighbors,  since  pure  logic  is  not  con- 
cerned with  questions  of  transportation  either  upon  earth 
or  across  the  sky.  Thus  institutions  which  are  only 
concrete  habits  of  humanity  are  not  in  themselves  ex- 
plicable by  categorical  logic. 

V:  Role  of  the  Categorical  in  Juridical  Life.  The  jurid- 
ical categorical  cannot  furnish  any  directions  for  the 
creation  or  interpretation  of  concrete  positive  law.  And, 
furthermore,  it  is  equally  impossible  for  it  to  serve  as  a 
basis  for  any  juridical  technic  whatever.  The  form  of 
positive  law,  like  its  substance,  remains  always  a  question 
of  practical  expediency.  Just  so  the  study  of  abstract 
syntax  can  furnish  no  practical  rules  of  language.  With- 
out doubt,  the  most  scholarly  languages  are  those  which 
are  richest  in  their  expression  of  abstract  ideas.  These 
are  the  languages  of  philosophy  and  meditation.  But 
practical  life  has  quickly  impoverished  their  work.  Deli- 
cate forms  and  shades  of  meaning  are  easily  neglected  and 
disappear  from  the  spoken  language  and  even  from  works 
of  literature.  What  a  gulf  between  the  grammatical 
treasures  of  Sanscrit  and  literary  Arabic  and  any  living 
language  of  the  present  day!  Can  it  be  said  that  a 
language  with  a  rich  grammar  is  superior  to  one  whose 
grammar  is  meagre?  The  two  correspond  to  different 
needs.  Very  advanced  civilizations  employ  a  telegraphic 
language  which  resembles  the  language  of  very  primitive 
peoples.  They  use  "nigger  talk."  They  lack  the  time  to 
employ  scholarly  forms  and  those  studied  by  grammarians. 
The  work  of  the  grammarian  is  nevertheless  not  lost. 
The  simplest  syntax  of  the  ultra-civilized  implies  the  com- 
plex syntax  of  the  scholar,  so  that  the  resemblance  be- 
tween the  language  of  a  modern  and  a  primitive  man  may 
be  more  apparent  than  real.  It  is  useless  to  employ  in 


§4]  PURE  LEGAL  SCIENCE 

speaking  certain  disused  forms  of  the  subjunctive,  but 
anyone  who  is  ignorant  of  them  is  in  a  state  of  intellectual 
inferiority. 

It  is  identically  the  same  with  juridical  syntax.  A 
positive  law  cannot  be  said  to  be  of  a  higher  order  from  the 
fact  that  it  reproduces  the  forms  of  this  juridical  syntax. 
It  is  possible,  on  the  contrary,  that  a  law  in  a  rudimentary 
form  is  of  more  service  than  a  scholarly  law.  Many 
systems  of  legislation  have  confused  public,  private  and 
criminal  law  and  been  none  the  worse  for  it.  The  fact 
that  real  rights  are  categorically  distinct  from  personal 
rights  does  not  compel  their  separation  in  the  framing  or 
even  in  the  teaching  of  positive  law.  But  the  rudimentary 
law  of  the  practitioner  implies  the  categorical  law,  the 
juridical  grammar,  which  alone  can  give  the  complete 
logical  sense  of  the  law. 

Historically,  the  existence  of  categorical  truths  tends  to 
unify  and  regulate  the  progress  of  the  law.  While  con- 
structions may  be  as  varied  as  human  psychology,  pure 
logic  is  the  same  for  all  and  in  all  systems  of  legislation. 
The  variety  may  spring  from  the  inequality  of  science, 
but  the  object  of  science  is  identical.  No  doubt,  certain 
jurists  and  systems  of  legislation  dive  deeply  into  the 
abstract  truths  of  laws,  while  others  scarcely  scratch  the 
surface;  the  same  aspects  of  these  truths  are  not  always 
revealed  to  both. 

§  4.  Pure  Legal  Science  or  the  Science  of  Possible  Solu- 
tions. In  Roguin's  Preface  (beyond  which  I  hardly  follow 
him)  he  points  out  a  scientific  germ  that  is  very  slightly 
developed,  but  quite  interesting  from  the  logical  and 
perhaps  also  from  the  practical  point  of  view.  Let  us 
give  it  the  name  of  "pure  legal  science"  or  the  science  of 
possible  solutions. 

This  legal  science  may  have  serious  practical  interest 
as  an  auxiliary  of  politics.  The  politician  who  appraises 
existing  laws,  proposes  reforms,  or  invents  institutions, 


466  SCIENTIFIC  LAW  [CH.XIII 

cannot  —  let  us  repeat  —  perform  scientific  work.  Among 
all  the  solutions  which  are  presented  to  him,  he  is  obliged 
to  make  a  choice,  to  express  a  purely  subjective  and  hence 
arbitrary  judgment  of  values.  There  are  therefore  no 
political  or  legislative  problems,  if  we  use  the  word 
"problem"  in  its  exact  meaning.  "Must  divorce  be  es- 
tablished, facilitated  or  restricted?"  "The  death  penalty 
abolished  or  maintained?"  "Inheritance  rights  granted 
to  some  specific  relative?"  These  are  questions  to  which 
an  answer  may  be  sought,  but  not  problems  that  could 
be  solved;  for  a  problem  implies  the  possibility  of  dis- 
covering through  scientific  processes  a  certain,  although 
a  hidden,  truth. 

But  the  politician,  who  is  not  engaged  in  scientific 
work,  may,  nevertheless,  consult  other  sciences  in  order 
to  gain  convictions  or  discover  new  solutions.  He  has 
scarcely  resorted  up  to  the  present  to  any  but  concrete 
sciences  and  observation,  to  history  and  comparative  law. 
If  he  wishes  to  make  a  critical  examination  of  a  special 
institution  or  social  organization,  he  consults  the  past,  and 
studies  foreign  legal  systems,  that  is,  he  observes  what 
has  been  done  in  former  times,  and  what  is  being  done  in 
our  day.  But  what  has  been  done  formerly  and  what  is 
being  done  nearly  everywhere  now  may  be  a  very  small 
thing  in  comparison  with  what  might  be  done.  And 
what  might  be  done  can  be  indicated  only  by  an  "a 
priori"  logical  science. 

Roguin  puts  these  questions: 

"  (Must  we)  hand  over  all  efforts  at  innovations  to  the 
ordinary  or  official  lawmaker  who  nearly  always  steps  in 
accidentally  and  without  method?  .... 

"  (Would  it  not  be  more  fitting)  rather  that  jurists  en- 
dowed with  mentality  capable  of  analysis  and  synthesis 
should  interest  themselves  in  the  establishment  in  each 
legal  province  of  a  vast  system  of  possible  juridical  rela- 
tions without  regard  to  their  actual  existence  or  non- 


§4]  PURE   LEGAL  SCIENCE  467 

existence?  We  believe  that  it  would  be  extremely  wise 
to  follow  this  course,  in  order  to  offer  to  the  lawmaker  a 
wider  choice  of  relations  which  might  be  introduced  into 
positive  law,  and  to  give  more  suppleness  to  juridical 
innovation."1 

It  would  indeed  be  valuable,  this  science  which  would 
present  to  the  politician  and  lawmaker  all  possible  so- 
lutions of  a  given  question,  and  would  completely  detach 
the  function  of  research  from  that  of  evaluation. 

At  present,  the  same  mind  is  obliged  to  undertake 
simultaneously  two  tasks  which  are  logically  foreign  to 
each  other;  to  discover  all  the  courses  it  is  possible  to 
follow,  and  to  judge  which  is  the  best  of  these  courses. 
Of  these  two  tasks  one  is  prejudicial  to  the  other.  An 
ingenious  mind  tries  to  force  the  acceptance  of  a  juridical 
find  which  it  thinks  perfect,  because  it  has  discovered  it; 
while  a  conscientious,  dull  mind  is  too  absorbed  in  the 
examination  of  one  or  two  extreme  solutions  to  suspect 
the  thousand  intermediate  solutions  which  might  satisfy 
every  exigency. 

Let  us  suppose  a  cut  and  dried  table  of  all  the  combina- 
tions possible  upon  a  given  juridical  question  to  be  in 
general  circulation.  The  politician  would  have  to  renounce 
any  claim  to  being  an  inventor;  he  would  remain  simply 
the  judge  of  values  and  could  concentrate  all  of  his  intel- 
lectual force  upon  the  function  of  passing  such  judgments. 

Such  a  division  of  the  intellectual  labor  of  the  politician 
and  lawmaker  would  undoubtedly  be  most  successful.  Is 
it  a  possibility?  Within  certain  limits,  it  is  assuredly 
possible.  Roguin  himself  has  given  us  an  example  of  it 
by  constructing  at  the  end  of  his  volume  a  system  of 
the  elementary  principles  of  intestacy.2  Every  existing 
or  imaginable  legal  system  should  \yc  traceable  to  one 
of  the  four  or  to  a  combination  of  the  four  principles 
discerned  by  the  author. 

1  ROGUIN.  "Regie  de  Droit."  p.  15.  '  "Regie  de  Droit."  p.  420. 


468  SCIENTIFIC  LAW  [CH.XIII 

All  the  literature  upon  pure  legal  science  with  which  I 
am  acquainted  could,  in  factr  be  put  in  a  nutshell.  Must 
this  literature  be  developed  ?  In  my  opinion,  one  renders 
small  service  to  humanity  by  trying  to  weigh  it  down  with 
a  new  discipline.  But  if,  on  the  other  hand,  it  is  a  question 
of  working  out  simply  and  quietly  in  the  study  under  the 
lamplight,  what  is  actually  done  amidst  the  agitation  of 
legislative  assemblies,  the  task  of  the  conscientious  law- 
maker will  be  rendered  only  the  more  secure. 

These  practical  questions  are  of  secondary  importance 
for  us.  From  the  historical  and  philosophical  point  of 
view  two  questions  present  themselves: 

(1)  What  might  be  the  logical  value  of  a  pure  legal 
science? 

(2)  Would  it  be  an  innovation  or  would  it  have  its 
roots  in  the  past? 

(1)  Can  we  draw  up  a  logical  table  of  all  the  possible 
solutions  for  a  given  juridical  situation?  and  if  so,  by  what 
method?  Certainly,  it  is  possible.  For  this  purpose  it 
is  sufficient  to  establish  a  series  of  propositions  that  are 
strictly  disjunctive  and  do  not  allow  any  place  for  a  third 
hypothesis,  or  of  those  which  are  trijunctive  and  allow 
no  place  for  a  fourth  proposition ;  and  so  on. 

f  If  A  is  not  B,  it  is  C. 

Disjunctive  Propositions  i  T,  A  .        ,./•»•,••« 

[  If  A  is  not  C,  it  is  B. 

f  If  A  is  neither  B  nor  C,  it  is  D. 

Trijunctive  Propositions  -\  If  A  is  neither  C  nor  D,  it  is  B. 

I  If  A  is  neither  B  nor  D,  it  is  C. 

The  two  terms  of  each  proposition  should  be  absolutely 
contradictory  to  each  other  and  accordingly  form  al- 
ternates. 

Thus,  applied  to  a  law: 

(a)  With  the  sexual  relations  between  men  and  women 
the  law  can  or  cannot  concern  itself. 


54]  PURE  LEGAL  SCIENCE  469 

If  the  law  does  not  concern  itself  with  them,  there  is 
no  family  law.  If  it  does  concern  itself  with  them,  there 
is  a  family  law. 

(b)  Suppose  that  the  law  concerns  itself  with  the 
sexual  relations  between  men  and  women,  it  can  then 
sanction  collective  unions  or  individual  unions.     In  the 
second  case  only  will  there  be  marriage. 

(c)  Suppose  that  the  law  sanctions  unions  between  one 
man  and  a  certain  number  of  women,  this  number  of 
women  will  be  limited  or  not  limited. 

(d)  If  it  is  limited,  it  may  be  limited  to  one,  to  two,  or 
to  more  than  two,  etc. 

Each  branch,  neglected  for  a  moment,  may  be  taken  up 
in  its  turn.  Thus  a  complete  table  of  all  the  possibilities 
of  an  institution  can  be  framed. 

(2)  Is  such  a  work  totally  foreign  to  the  intellectual 
habits  of  jurists  and  can  anything  like  it  or  at  least  anal- 
ogous to  it  be  found  among  the  jurisconsults  of  the  past? 

In  the  first  place,  it  must  be  remarked  that  series  thus 
arranged  would  be  rather  cumbersome  and  monotonous 
for  works  of  small  compass;  and  that  a  diagram  implying 
the  general  formula  is  at  the  same  time  simpler  and 
clearer : 

Sexual  Union 

I  

Not  regulated  by  law  Regulated  by  law 


Collective        Individual 
Forms  Forms 


Unlimited  Polygamy    j    Monogamy 
Limited  Polygamy 

Now  diagrams  of  this  kind  are  met  with  in  a  good 
many  works  on  juridical  questions.     In  the  Roman  law 


470  SCIENTIFIC  LAW  [CH.XIII 

of  the  Middle  Ages  they  were  called  "  distinctiones. "  These 
"  distinctiones "  relate  to  any  juridical  idea  whatever  and 
examine  "in  an  order  of  decreasing  generality  "  the  various 
combinations  into  which  this  idea  may  enter.  Later, 
these  "distinctiones"  take  the  name  "typi."  They  are 
then  more  fully  developed  and  conducted  with  more  at- 
tention to  details.  We  may  cite  for  example  the  "Typus 
Exceptionum"  of  Rebuffus,  inserted  in  numerous  editions 
of  the  Digest  under  the  title  "Exceptionibus"  (XLIV.  1). 

Outside  of  this  scholastic  tradition  Austin  illustrates  his 
Philosophy  of  Positive  Law  with  a  number  of  diagrams 
upon  the  sources  and  the  aim  of  laws,  the  various  kinds 
of  sanction,  damages,  fault,  the  "forma  imperil,"  the 
"forma  regiminis,"  etc. 

These  various  works  approach  very  unevenly  what 
should  logically  constitute  pure  legal  science.  For  a  sci- 
ence of  this  kind  should  have  as  a  characteristic  the  dis- 
entanglement, aside  from  all  observation,  of  alternatives 
which  are  strictly  logical  and  universal.  Now  the  object 
of  these  various  diagrams  is  primarily  pedagogical  and 
mnemonic.  They  summarize  in  a  more  striking  form 
more  fully  developed  statements.  They  state  juridical 
questions  "in  the  order  of  their  decreasing  generality," 
but  do  this  by  making  an  analysis  of  one  or  more  systems 
of  positive  law;  consequently  they  are  the  work  of  ob- 
servation rather  than  of  "a  priori"  logic.  Therefore 
these  are  not  tables  of  all  possible  solutions,  but  incom- 
plete tables  of  solutions  already  invented. 

It  might  be  concluded  from  this  that  there  is  no  resem- 
blance between  these  various  works  and  the  investiga- 
tions of  pure  legal  science,  as  it  has  been  defined.  Such  a 
conclusion  would  be  partly  true  and  partly  false.  Tables 
of  the  kind  just  illustrated  are  mixed.  They  arise  from 
an  inferior  logical  type,  but  end  in  one  which  is  of  a  higher 
order  from  the  threefold  point  of  view  indicated  above, 
(a)  In  their  origin,  they  are  purely  pedagogical  and 


§41  PURE   LEGAL  SCIENCE  471 

mnemonic,  but  in  the  hands  of  ingenious  jurists  they  be- 
come transformed  into  a  method  of  creative  logic  from 
which  new  ideas  and  new  points  of  view  may  arise, 
(b)  They  contain  the  greatest  number  possible  of  con- 
tradictory terms  placed  in  striking  opposition  to  one 
another.  Even  the  oldest  and  most  rudimentary  —  under 
the  influence,  no  doubt,  of  scholastic  logic  —  present  true 
disjunctive  propositions  from  which  nothing  is  to  be  taken 
away,  (c)  In  their  origin,  they  are  summaries  of  concrete 
observations  relating  to  a  certain  number  of  positive  legis- 
lations; but  they  have  a  tendency  to  stray  farther  and 
farther  from  the  field  of  experimental  verification  into  that 
of  the  a  priori  and  abstract  logic. 

Thus  the  "  distinctiones "  of  the  Romanists  classify  the 
ideas  of  the  Justinian  legal  system.  But  this  system 
contains,  beside  details  which  pertain  only  to  the  Romans, 
ideas  which  are  universal  or  at  any  rate  almost  so,  e.g., 
mistake,  ignorance  of  law,  deceit,  and  fraud.  The  clas- 
sification of  all  the  possible  forms  of  mistake,  ignorance, 
etc.,  was  not  the  product  of  a  simple  compilation  of  texts, 
but  a  rational  work. 

Besides,  for  the  Romanists  of  the  Middle  Ages,  Roman 
law  and  written  reason  were  fused.  To  them,  the  Roman 
principles  should  be  universal,  and  it  was  by  virtue 
of  this  universality  that  their  authority  was  imposed 
upon  reason. 

When  Rebuffus  draws  up  his  "Typus  Exceptionum"  he 
makes  the  "exception  "  (plea)  not  a  Roman  but  a  universal 
idea.  He  sees  in  it  a  situation  which  may  present  itself 
at  any  time  and  in  any  civilization;  that  of  the  accused 
or  the  defendant  who  cannot  deny  the  accusation  or  the 
claim  directly,  but  has  recourse  to  some  round-about 
means,  an  accessory  circumstance,  or  an  excuse  to  free 
himself.  And  he  expresses  his  idea  by  the  aid  of  a 
simile.  It  was  Adam,  the  first  father,  who  invented,  at 
the  moment  of  the  original  sin,  the  first  plea  of  pro- 


472  SCIENTIFIC  LAW  [CH.XIIi 

cedure.  Accused  of  having  eaten  the  apple  and  not 
being  able  to  deny  that  he  had  been  forbidden  to  do  so, 
he  insinuates  quite  respectfully  that  the  Eternal  Father 
might  well  be  the  principal  culprit  in  the  whole  affair. 
"  Mulier,  guam  dedisti  mihi  sociam,  dedit  mihi  de  ligno, 
et  comedi."  If  he  had  spoken  frankly  he  would  have 
said,  "I  disobeyed  you,  but  it  was  you  who  gave  me  the 
woman  who  incited  me  to  disobedience."  Moreover, 
with  the  nonchalance  of  a  supreme  tribunal,  Jehovah 
avoided  any  definite  answer  to  this  first  "exception." 

Under  the  form  of  this  simile,  Rebuffus  of  Montpellier 
certainly  meant  to  express  that  he  had  compiled  his 
"Typus  Exceptionum"  above  Roman  law  and  above  all 
positive  law,  in  complete  abstraction.  With  Austin,  the 
abstract  character  is  more  striking  still,  although  his 
method  is  always  a  little  ambiguous. 

A  thorough  study  of  these  juridical  tables  would  bring 
to  light  an  intellectual  phenomenon  which  is  not  very 
frequent,  that  is,  the  transformation  by  insensible  degrees 
of  a  science  of  observation  into  an  "a  priori"  science,  a 
transformation  which  brings  with  it  new  importance  and 
new  authority. 

BIBLIOGRAPHY 

BACON,  Novum  Organum,  De  dignitate  et  augmentatione  scien- 
tiarum;  MILL'S  System  of  Logic,  bk.  Ill,  ch.  8,  9;  BERKELEY, 
Principles  of  Human  Knowledge ;  DAVID  HUME,  Enquiry  Concerning 
Human  Understanding;  JOHN  HERSCHELL,  Discourse  on  the  Study 
of  Natural  Philosophy,  part  II,  ch.  4-7;  THOMSON  and  TAIT,  Natural 
Philosophy,  I,  p.  307;  CLAUDE  BERNARD,  Introduction  a  la  medecine 
experimentale,  p.  31. 

HUXLEY,  The  Study  of  Natural  Science. 

LIARD,  Logique,  La  science  positive  et  la  metaphysique;  RABIER, 
Logique;  REY,  Lecons  de  psychologie  et  de  philosophie,  pp.  338-340; 
PAYOT,  Delacroyance  (1906);  GOURD,  Le  Phenomene;  WINDELBAND, 
Einleitung  in  die  Philosophie  (1914),  p.  240;  Encyclopedic  der  phi- 
losophischen  Wissenschaften,  ed.  by  A.  RUGE  u.  WINDELBAND,  vol. 
I,  Logik  (articles  therein  by  WINDELBAND,  ROYCE,  CONTURAT,  etc.). 


§  4  ]  PURE  LEGAL  SCIENCE  473 

FULCI,  Filosofia  scientifica  del  diritto  (1906);  DUGUIT,  L'Etat  le 
Droit  objectif,  pp.  5,  20,  Le  droit  social  (1911),  Transformations  du 
Droit  prive,  pp.  62,  160;  HAYEM,  Le  droit  de  propriete  et  ses  limites 
(1910),  p.  2.  RIGAUD,  Le  droit  reel  (1912). 

HOBBES,  Leviathan;  AUSTIN'S  Lectures  on  Jurisprudence,  5th  ed., 
p.  32;  ROGUIN,  La  Regie  de  Droit,  pp.  9-10,  13,  16;  THON,  Rechts- 
norm  und  subjektives  Recht;  BEKKER,  Zur  Lehre  vom  Rechtssub- 
jekt;  MERKEL,  Ueber  das  Verhaltnis  der  Rechtsphilosophie  zur 
positiven  Rechtswissenschaft;  Elemente  der  allgemeinen  Rechts- 
lehre;  BIERLING,  Zur  Kritik  der  juristischen  Grundbegriffe;  Juris- 
tische  Prinzipienlehre. 

BINDING,  Die  Normen  und  ihre  Uebertretung ;  STERNBERG,  All- 
gemeine  Rechtslehre;  G.  JELLINEK,  System  der  subjektiven  offent- 
lichen  Rechte;  W.  JELLINEK,  Gesetz,  Gesetzanwendung  u.  Zweck- 
massigkeitserwagung;  KELSEN,  Hauptprobleme  der  Staatsrechts- 
lehre  (1911);  HAFF,  Grundlagen  der  Korperschaftslehre;  BOSANQUET, 
The  Philosophical  Theory  of  the  State;  BINDER,  Rechtsbegriff  u. 
Rechtsidee;  Ueber  kritische  und  metaphysische  Rechtsphilosophie, 
in  Archiv  fur  Rechts-  und  Wirtschaftsphilosophie  (1915). 

KANT,  Kritik  der  reinen  Vernunft;  Transcend.  Elementarlehre, 
2  Th.,  Ab.,  1,  §  10;  Von  den  reinen  Verstandesbegriffen  oder  Kate- 
gorien;  RENOUVIER,  Essai  de  critique  g£nerale;  VACHEROT,  La  m<5- 
taphysique  et  la  science;  PARODI,  La  critique  des  categories  kan- 
tiennes  chez  Charles  Renouvier,  in  Revue  de  mctaphysique  et  morale 
(1904),  p.  606;  PELAGYI,  Der  Streit  der  Psychologischen  und  For- 
malisten  in  der  modernen  Logik  (1901);  STAMMLER,  Theorie  der 
Rechtswissenschaft;  RADBRUCH,  Grundzuge  der  Rechtsphilosophie. 

HUSSERL,  Ideen  zu  reinen  Phanomenologie  (1913),  p.  3;  REINACH, 
Die  apriorischen  Grundlagen  des  biirgerlichen  Rechtes  (1913),  p. 
839  ff.;  DJUVARA,  Le  Fondement  du  phenomena  juridique;  STEFAN- 
ESCU,  Le  dualisme  logique  (1915). 


CHAPTER  XIV 
METAPHYSICS  AND  LAW 

§  1.  METAPHYSICAL  THOUGHT.  —  §  2.  TRANSCENDENT  JUSTICE: 
(I)  POLITICAL  SOLUTION;  (II)  SUBJECTIVE  JUSTICE;  (III)  COLLEC- 
TIVE CONCEPTION  OF  JUSTICE;  (IV)  MUTABLE  JUSTICE  AND  IM- 
MANENT JUSTICE;  (V)  IMMUTABLE  AND  TRANSCENDENT  JUSTICE. 
—  §3.  METAPHYSICAL  LAW  AND  MORALITY:  (I)  METAPHYSICAL 
LAW  DISTINCT  FROM  MORALITY;  (II)  CHARACTER  OF  JURIDICAL 
DUTY.  — §4.  METAPHYSICAL  LAW  AND  POSITIVE  LAW.— §5.  IDEAS 
DERIVED  FROM  THE  IDEA  OF  JUSTICE:  (I)  METHODS  OF  DERIVA- 
TION; (II)  ANALYSIS  OF  SUUM  CUIQUE;  (III)  GOVERNMENTAL  JUS- 
TICE; (IV)  INTERNATIONAL  JUSTICE.—!  6.  THE  OLD  NATURAL  LAW: 
(I)  REASON;  (II)  NATURE.  — §  7.  THE  HISTORY  AND  THE  METAPHYS- 
ICS OF  LAW. 

§  1.  Metaphysical  Thought.  Twenty  years  ago,  with 
the  hardly  laudable  object  of  offending  simple  and  pious 
souls,  a  group  of  lecturers  traveled  through  France,  even 
into  the  smallest  towns,  offering  for  public  discussion  the 
same  thesis,  which  was  placarded  in  profusion  upon  every 
wall:  "The  God  hypothesis  becomes  less  and  less  prob- 
able." The  "God  hypothesis"  was  quite  as  popular  as 
was,  some  years  later,  that  of  "the  burnt  out  stars."  It 
met  with  the  same  success  of  enthusiasm  and  scandal. 

To  tell  the  truth,  it  deserved  neither  the  success  nor 
the  obloquy.  "God"  is  a  metaphysical,  and  hence  a  hy- 
pothetical, conception.  But  metaphysical  conceptions  are 
not  submitted  to  the  calculation  of  probabilities.  To 
consider  the  possible  solutions  of  the  great  problem  of 
the  universe,  as  so  many  race  horses  with  greater  or  less 
chances  of  winning  the  race,  is  scarcely  scientific  or  philo- 
sophic, but  very  human.  The  "God  hypothesis,"  quite 
like  the  "no-God  hypothesis,"  can  neither  lose  nor  gain 
anything  in  logical  value  from  the  fact  of  the  existence  of 

474 


§1]  METAPHYSICAL  THOUGHT  475 

the  experimental  sciences  to  which  it  is  entirely  foreign. 
It  may  lose  or  gain  in  authority,  according  to  circum- 
stances, over  the  vacillating  psychology  of  humanity. 

Metaphysics  consists  of  a  series  of  hypotheses  upon  the 
unknown  conducted  according  to  the  methods  of  rational 
logic.  It  is  justified  in  pure  logic.  The  conjunction  "if" 
is  an  essential  element  of  the  logic  of  mathematics. 
Metaphysics,  to  remain  logic,  should  establish  as  hypo- 
thetical what  is  hypothetical,  and  as  positive  what  is 
positive.  The  conclusion  of  a  course  of  metaphysical  rea- 
soning should  contain  exactly  as  many  hypothetical  ele- 
ments as  there  were  in  the  premises.  Metaphysical  labor 
should  never  result  in  increasing  the  probability  of  any 
necessarily  invariable  solution.  It  only  permits  that 
everything  contained  in  the  hypothetical  data  be  ac- 
counted for.  In  this  form  it  is  equally  legitimate  and 
useful. 

It  is  often  said  "Faith  begins  where  scientific  certainty 
ends."  But  this  is  false.  Scientific  doubt  begins  where 
scientific  certainty  ends.  The  domain  of  the  uncertain  is 
not  necessarily  abandoned  to  every  whim  of  the  imagina- 
tion or  fancy,  or  to  every  personal  impulse.  Doubt  as  to 
method  may  enter  into  and  regulate  it,  and  make  it  un- 
derstood without  depriving  it  of  its  uncertain  character. 
Logic  works  by  the  same  processes  in  the  hypothetical 
that  it  does  in  the  positive,  although  its  task  then  is  a  lit- 
tle more  delicate. 

The  word  "metaphysics"  is  for  many  synonymous 
with  vagueness  and  absurdity.  It  is  a  term  much  decried 
even  in  a  scholarly  atmosphere.  But  that  should  be  a 
matter  of  perfect  indifference  to  us.  The  word  "philoso- 
phy" had  quite  as  little  prestige  when  I  was  young,  and 
I  recall  having  seen  a  scholar  grow  red  with  anger  because 
one  of  his  colleagues  unwisely  ascribed  to  him  "a  truly 
philosophic  mind." 

A  celebrated  free-thinker  had  determined  never  to  pro- 


476  METAPHYSICS  AND  LAW         [CH.XIV 

nounce  the  word  God.  "It  has  not  been  without  diffi- 
culty," said  he,  "but  I  have  succeeded,  thank  God." 
Thus  must  we  distrust  those  who  claim  never  to  make 
use  of  metaphysics.  If  they  succeed,  it  is  a  wonderful 
feat  of  strength.  Most  often  —  if  not  always  —  when  they 
think  they  have  succeeded,  it  is  because  they  are  poor 
observers  of  their  own  thoughts. 

For  there  is  a  very  close  connection  between  meta- 
physics on  the  one  hand,  and  positive  science  and  practi- 
cal life,  on  the  other.  It  must  not  be  imagined  that  it 
has  been  or  will  be  loosened.  Only  by  an  arbitrary  agree- 
ment can  the  one  be  possibly  separated  from  the  others. 

The  most  indispensable  ideas  of  the  most  positive 
science  lead  to  metaphysics  those  who  wish  to  understand 
its  nature  and  are  not  content  with  the  superficiality  of 
mere  observation.  Thus  the  ideas  of  cause  and  of  space 
are  essentially  positive,  and  few  practical  minds  deny 
their  reality.  But  when  the  Brahmin  Kanada,  midst  the 
forests  of  India,  asked  himself  what  is  the  cause  of  space 
and  if  space  can  have  a  cause,  he  propounded  a  lofty 
metaphysical  problem.  How  many  thinkers  dissimilar  in 
customs  and  intellectuality,  scattered  over  the  surface  of 
the  earth,  have,  unknowingly  to  one  another,  propounded 
the  same  question !  And  is  it  not  striking  that  after  cen- 
turies and  centuries  a  man  like  Herbert  Spencer,  who  had 
devoted  so  much  effort  to  giving  a  positive  and  scientific 
explanation  of  the  concrete  world,  should  have  presented 
again  in  almost  the  same  terms  the  metaphysical  thoughts 
with  which  the  old  Hindu  philosopher  had  been  preoccu- 
pied? 

The  foundations  of  all  our  logic  are  equally  metaphys- 
ical .  This  is  true  of  the  "  a  priori "  as  well  as  of  the  "  a  pos- 
teriori," of  induction  as  well  as  of  deduction.  If  one  is  in- 
discreet enough  as  to  seek  a  complete  justification  of  the 
experimental  method,  or  of  the  mathematical  sciences,  or 
to  ask  himself  what  observation  can  reveal  to  us  concern- 


§1]  METAPHYSICAL  THOUGHT  477 

ing  the  nature  of  things,  one  states  just  so  many  meta- 
physical problems.  No  doubt  it  is  possible  to  stick  to 
experience  and  logic,  which  alone  can  give  results  that  are 
certain  so  far  as  our  intelligence  is  concerned,  and  to 
neglect  the  forms  of  intellectual  labor  which  can  legiti- 
mately lead  only  to  hypothetical  solutions.  But  a  sound 
mind  should  not  shrink  from  the  always  insoluble,  but 
deeply  fascinating,  riddles  of  existence.  Metaphysical 
thought  cannot  be  classed  as  intellectual  or  sentimental 
vagary.  It  is,  on  the  contrary,  the  highest  order  of 
thought  and  one  without  which  human  civilization  would 
be  a  trifling  matter. 

Practical  life  can  dispense  with  metaphysical  entities 
even  less  than  theoretical  life  can.  The  beautiful,  the 
good  and  the  just  can  find  no  positive  justification,  and 
yet  what  would  humanity  be,  deprived  of  these  three 
conceptions?  The  belief  in  the  transcendence  of  these 
three  ideas  has  governed  all  history,  and  the  history  of  law 
cannot  be  understood  if  one  forgets  that  men  have  always 
believed  in  a  justice  which  looks  down  upon  the  world. 

Let  us  borrow  a  happy  comparison  from  Binder  with 
the  idea  of  making  it  play  a  slightly  different  role. 
To  explain  the  origin  of  a  picture  is  to  state  the  circum- 
stances which  produced  it,  the  motives  which  impelled 
the  painter  and  urged  him  to  work,  and  the  influences 
which  made  him  choose  his  subject  and  treat  it  in  a  par- 
ticular way.  But,  however  detailed  these  explanations 
may  be,  they  will  not  be  sufficient.  The  painter  wishes  to 
create  beauty;  he  believed  in  abstract  and  ideal  beauty, 
in  a  confused  way,  perhaps,  but  he  believed  in  it.  For  if 
he  had  had  no  belief  in  the  beautiful,  he  would  not  have 
spoiled  the  paint  and  the  canvas  in  order  to  create  a  use- 
less work.  In  the  same  way,  the  more  or  less  conscious 
belief  in  an  ideal  of  justice  has  directed  men  in  the  build- 
ing up  of  the  law,  and  this  belief  constitutes  a  factor  in 
history  which  cannot  be  neglected. 


478  METAPHYSICS  AND  LAW         [Cn.XIV 

Therefore,  it  behooves  us  to  disengage  the  metaphys- 
ical thought  in  the  law,  as  a  special  form  of  thought,  and 
to  recognize  its  legitimacy  and  importance.  But,  be  it 
understood,  it  also  behooves  us  to  limit  its  scope  with  as 
much  exactness  as  possible.  Especially  should  we  avoid 
creating  metaphysics  without  knowing  it  or  admitting  it. 

Whoever  abandons  the  domain  of  the  positive  for  that 
of  the  ideal  ought  to  know  what  he  does.  Truth  is  one; 
there  is  but  one  truth.  As  to  the  truths  which  we  can 
grasp  and  define,  our  duty  is  to  reduce  them  to  unity. 
Such  is  the  domain  of  positive  science.  Positive  science  is 
the  science  of  truths  which  can  be  reduced  to  unity. 
Metaphysics  is  the  science  of  truths  which  cannot,  so  far 
as  we  know,  be  reduced  to  unity.  Our  duty  is  to  gather 
together  all  the  solutions  possible  but  to  give  preference 
to  none. 

§  2.  Transcendent  Justice.  "A  king  without  justice  is 
a  river  without  water,"  says  an  Arab  proverb,  and,  the 
king  personifying  the  law,  it  may  also  be  said,  "A  law 
without  justice  is  a  river  without  water."  Neither  rea- 
son, sentiment  nor  logic  can  give  the  law  its  content. 
They  may  dig  its  channel  and  provide  it  with  banks,  but 
justice  gives  juridical  science  its  "raison  d'etre." 

But  what  is  justice?  Among  the  metaphysical  entities 
that  guide  us  through  existence,  justice  is  the  only  one  of 
which  a  clear  and  simple  definition  has  been  given  for  a 
long  time.  While  it  would  be  difficult,  if  not  impossible, 
to  define  beauty  and  right,  the  two  Latin  words  "suum 
cuique  "  -  to  everyone  his  own  —  are  as  precise  and  as  full 
of  meaning  as  a  definition  could  be. 

From  the  principle  "suum  cuique"  one  may,  with  only 
the  cooperation  of  positive  logic,  deduce  an  infinite  num- 
ber of  practical  applications.  This  work  in  itself  would 
have  in  it  nothing  of  the  metaphysical.  An  identical  task 
might  be  fashioned  upon  any  other  principle,  e.g.,  "to 
every  one,  the  goods  of  another."  Positive  logic  cannot 


§2]  TRANSCENDENT  JUSTICE  479 

explain  why  the ' '  suum  cuique ' '  is  better  qualified  to  supply 
rules  of  conduct  under  certain  circumstances  than  any 
other  principle  whatever.  So  the  formula  in  itself  serves 
no  purpose,  if  one  cannot  see  in  it  an  ideal  to  which  it  is 
behooving  to  conform  as  far  as  possible.  By  what  intel- 
lectual operation  can  we  transform  into  an  ideal  a  phrase 
which,  logically,  is  nothing  more  than  any  other  phrase? 
Such  is  the  question  which  presents  itself  and  to  which 
various  answers  are  given. 

I:  Political  Solution.  For  a  certain  number  of  minds 
—  more  numerous  perhaps  than  it  might  appear  —  the 
problem  does  not  even  exist.  Justice  is  a  word  which  has 
for  them  no  real  meaning;  but  it  is  a  popular  word  and 
possesses,  accordingly,  a  certain  power  of  action.  Like- 
wise, it  is  always  necessary  to  claim  to  act  according  to 
justice,  but  to  follow  in  reality  any  other  rule  of  more 
positive  conduct.  Thus  certain  rabbis  say  of  certain 
psalms  which  are  difficult  to  interpret,  that  they  were 
made  to  be  sung  and  not  to  be  discussed.  Very  often,  in 
politics,  justice  "sings  itself."  It  is  a  beautiful  rhetorical 
expression;  and,  to  draw  the  crowd,  rhetoric  is  as  power- 
ful as  logic. 

II :  Subjective  Justice.  The  conception  of  justice  would 
be,  in  this  second  system,  purely  subjective.  It  would  be 
produced  by  a  certain  mental  state.  As  it  could  not  re- 
sult from  any  logical  toil,  it  would  be  of  an  emotional  or 
sentimental  nature.  It  is  obvious  that  the  sentiment  and 
the  emotion  of  justice  play  a  large  part  in  social  life.  The 
sentiment  is  particularly  respected  as  being  the  manifes- 
tation of  an  idea  of  justice.  If  this  idea  is  purely  an  illu- 
sion, there  subsists  only  a  simple  nervous  state,  and  this 
nervous  state  can  in  nowise  modify  the  logical  nature  of 
a  formula.  The  "suum  cuique,"  justice,  exists  no  more 
in  this  conception  than  in  the  preceding. 

Ill:  Collective  Conception  of  Justice.  Justice  is  some- 
times presented  as  the  reflection  of  the  collective  con- 


480  METAPHYSICS  AND  LAW        [Cn.XIV 

science.  Its  conformity  to  public  opinion  would  consti- 
tute its  value.  But  is  there  such  a  thing  as  public  opin- 
ion, and  if  so,  where  is  it  to  be  found  ?  Changes  in  opin- 
ion are  contradictory  and  easily  effected  when  one  pos- 
sesses political  or  financial  power.  By  putting  up  the 
expenses,  one  might  start  a  movement  to  compel  people 
to  walk  upon  their  hands  with  their  feet  in  the  air.  This 
idea  of  public  opinion  should  be  entirely  disregarded  in 
philosophy. 

The  sociologist-philosopher  Vierkandt  has  tried  to  re- 
fine this  idea  by  proposing  to  consult  the  "disinterested 
spectator,"  instead  of  the  crowd.  He  observes  that  .in 
every  quarrel  the  motives  which  impel  the  contending 
parties  to  action  are  of  a  low  order,  while  the  opinion  of 
disinterested  spectators  is  based  upon  considerations  of  a 
higher  order.  Accordingly,  in  the  psychology  of  the  dis- 
interested spectator  there  might  be  found- the  best  criterion 
by  which  to  gauge  the  justice  or  the  injustice  of  a  cause. 

Psychological  and  historical  observation  compels  us  to 
beware  of  being  deluded  in  this  matter : 

(a)  Are  there  really  disinterested  spectators  who  can 
remain  spectators?    And  if  there  are,  are  there  many? 
Man's  temperament  is  to  take  part  even  in  disputes  in 
which  he  has  no  interest.    A  dog  fight  will  set  a  whole 
town  to  fighting.     Given  one  bold  valet,  another  valet 
passing  the  insult,  and  the  gentlemen  of  old  Verona  draw 
their  swords.    To  preserve  one's  sang-froid  and  judge  ob- 
jectively every  element  of  a  quarrel  is  an  extremely  diffi- 
cult matter  for  an  individual;  for  a  collective  body,  it  is 
an  absolute  impossibility. 

(b)  Furthermore,  if  disinterested  spectators  are  better 
able  to  judge,  they  must  nevertheless  have  a  criterion  in 
order  to  judge.    This  criterion  can  only  be  "suum  cui- 
que"  justice. 

This  homage  rendered  to  justice  is  a  good  thing,  but 
does  not  suffice  to  explain  its  nature  and  authority. 


§2]  TRANSCENDENT  JUSTICE  481 

IV:  Mutable  Justice  and  Immanent  Justice.  Many 
thinkers  have  tried  to  reconcile  the  indisputable  variabil- 
ity of  human  institutions  and  conceptions  based  on  jus- 
tice and  morality,  with  an  idea  of  a  justice  which  can 
serve  some  purpose.  It  is  out  of  the  question  to  examine 
all  the  systems  which  have  attempted  this  reconciliation 
by  avoiding  the  idea  of  the  immutability  and  the  trans- 
cendence of  justice,  which  was  supposed  to  be  definitively 
overthrown.  Can  we  conceive  of  an  ideal  which  ema- 
nates from  ourselves  and  changes  according  as  we  ourselves 
change?  Can  we  have  recourse  to  this  ideal  to  guide  us 
in  our  actions  and  in  our  judgments  upon  the  facts  of 
real  life  ?  Both  are  radically  impossible ;  a  mutable  justice 
and  an  immanent  justice  are  totally  incomprehensible. 

Has  slavery  ever  been  just?  We  do  not  hesitate  to 
answer  "No."  Nevertheless,  it  has  been  very  fortunate 
for  humanity  and  indispensable  in  the  development  of 
civilization.  Some  slaves  have  been  able  to  live  a  life 
which  was  much  more  pleasant  and  on  a  much  higher 
plane,  both  materially  and  intellectually,  than  that  of 
many  free  men.  Thinkers  among  the  ancients  consid- 
ered slavery  legitimate.  No  doubt.  But  that  has  noth- 
ing to  do  with  the  idea  of  justice  as  summarized  in  the 
expression  "suum  cuique."  To  say  that  slavery  could 
have  been  just  is  to  rob  the  word  justice  of  all  logical 
meaning,  or  at  least  to  give  it  another  meaning.  Now  if 
we  change  the  meaning  of  a  word,  the  exterior  form  alone 
remains,  but  none  of  the  inner  elements  are  necessarily 
there.  We  cannot  say  that  the  idea  of  justice  is  mutable, 
but  that  the  same  word  can  be  applied  to  different  things, 
—  a  statement  that  is  obvious  but  of  no  interest. 

If  justice  is  mutable,  it  will  become  resolved  into  a 
series  of  small  forms  of  justice,  each  member  of  which  is 
independent  of  the  others  and  may  be  in  opposition  to 
them.  How  shall  the  conflict  between  these  be  decided? 
There  is  only  one  of  them  right  for  each  period,  it  will  be 


482  METAPHYSICS  AND  LAW         [CH.XIV 

said.  But  which  one,  and  how  shall  it  be  recognized? 
How  can  one  discriminate  between  what  is  just  and  what 
is  unjust? 

"Singulidre  fortune  ou  le  but  se  deplace 
Et  n'etant  nulle  part,  peut  etre  n'importe  ou." 

Mutable  justice  is  devoid  of  logical  meaning  and  prac- 
tical utility. 

Justice  which  emanates  from  humanity  is  no  more  com- 
prehensible. We  can  take  for  our  aim  or  our  ideal  only 
what  is  situated  outside  of  ourselves.  One  can  move 
himself  only  by  placing  his  fulcrum  on  the  outside.  Chil- 
dren in  a  car  think  that  they  can  hasten  the  speed  of  the 
train  by  pushing  against  the  sides.  They  are  victims  of 
an  illusion  similar  to  that  of  those  who  believe  that  jus- 
tice can,  at  the  same  time,  emanate  from  humanity  and 
serve  some  purpose  to  humanity.  "The  best  dancer  can- 
not dance  upon  her  own  shoulders,"  said  the  philosopher 
Cankara  many  years  ago. 

V:  Immutable  and  Transcendent  Justice.  Whoever  de- 
mands justice  or  complains  of  an  injustice,  affirms  by  this 
very  act,  the  immutability  and  transcendency  of  this  idea. 
To  deny  this  immutability  or  this  transcendency,  is  to 
deny  justice  itself,  or  at  least,  to  refuse  it  any  ideal  char- 
acter. 

Therefore  all  justice  is  metaphysical,  that  is  to  say, 
hypothetical.  Confronting  this  hypothesis,  three  logical 
positions  are  equally  legitimate: 

(a)  Either  to  reject  the  hypothesis  and  no  longer  in- 
voke under  any  circumstances  a  valueless  entity ; 

(b)  Or  to  admit  the  hypothesis  by  an  act  of  belief  and 
affirm  it  as  an  article  of  faith; 

(c)  Or  to  admit  it  as  a  hypothetical  principle  because 
it  is  the  sole  hope  of  humanity  for  the  future.    There  can 
surely  be  nothing  lost  by  this  stand  and,  it  may  be, 
something  gained. 


§2]  TRANSCENDENT  JUSTICE  483 

Immutable  and  transcendent  justice  is  a  metaphysical 
hypothesis,  which  is  logically  irreproachable  if  its  hypo- 
thetical character  is  allowed.  On  the  other  hand,  it  is 
firmly  based  upon  a  practical  consideration  of  the  highest 
value  for  human  civilization,  namely,  that  of  giving  con- 
tent and  direction  to  juridical  science. 

What  must  we  understand  by  transcendency  and  im- 
mutability? One  is,  to  be  sure,  the  corollary  of  the 
other. 

Immutability  alone  can  give  a  logical  meaning  to  jus- 
tice, and  transcendency  alone  can  explain  this  immuta- 
bility. For  the  abstract  conceptions  of  man  are  essen- 
tially mutable,  and  if  the  mind  of  man  changes  constantly, 
how  can  an  immutable  conception  emanate  from  its  psy- 
chology? There  must  be  supposed  at  one  and  the  same 
time,  an  intimate  sense  in  man  which  guides  him  towards 
a  confused  ideal  that  he  endeavors  to  see  more  clearly, 
and  a  moral  power  higher  than  man  which  comes  to  cer- 
tify to  him  that  what  he  believes  he  sees  above  him  really 
does  exist. 

When  Christ  pronounced  the  words  in  the  Sermon  on 
the  Mount,  "Blessed  are  they  who  hunger  and  thirst  after 
justice,  for  they  shall  be  filled,"  or  when  Plato  address- 
ing the  two  old  men  of  Crete  and  Lacedemonia,  said,  "  I 
shall  endeavor  to  speak  to  you  of  justice  in  itself" 
that  is  of  the  justice  which  forms  a  part  of  the  eternal 
verities  and  of  which  man  shut  up  in  the  cave  perceives 
but  the  shadow,  —  both  promised  the  confirmation,  in  a 
superlogical  world,  of  a  human  and  logical  formula,  but 
one  which,  left  to  itself,  remains  devoid  of  all  value  or 
prestige. 

It  is  certain  that  in  order  to  undertake  any  work  re- 
lating to  the  beautiful,  the  good  or  the  just,  man  is 
obliged  to  claim  for  a  higher  power  the  consecration  of 
these  abstractions  which  his  logic  forbids  him  to  claim  for 
himself.  Must  we  conclude  from  this  that  the  position  of 


484  METAPHYSICS  AND   LAW        [Cn.  XIV 

metaphysical  justice  entails  a  profession  of  religious  faith 
and  imposes  belief  in  God?    By  no  means. 

No  doubt,  he  who  believes  in  God  will  be  more  ready 
to  explain  the  nature  of  the  ideal,  by  making  of  it  an  at- 
tribute of  divinity  or  an  emanation  from  his  will.  Still 
this  explanation  is  not  without  difficulty,  and  theologians 
in  many  different  religions  have  perceived  this  for  a  long 
time.  The  Hindu  Brahmins,  the  Greek  philosophers,  and 
the  Schoolmen  argued  at  length  upon  the  relations  be- 
tween justice  and  the  divine  will.  For  if  God  is  all  pow- 
erful, can  he  not  change  anything  that  he  wishes  to 
change?  Can  he  not  transform  the  very  foundations  of 
justice?  If  he  happens  to  change  them,  can  man  reason- 
ably recognize  as  immutable  what  is  obviously  mutable? 
According  to  the  side  which  they  take  in  these  diverse 
controversies,  acknowledged  theists  may  unsettle  and  de- 
stroy the  metaphysical  idea  which  is  necessary  to  man, 
and  leave  it  in  the  same  state  of  relativity  and  uncer- 
tainty as  the  most  groveling  positivism. 

On  the  other  hand,  does  the  idea  of  justice,  even  for  a 
theist,  find  its  transcendency  in  God?  Many  philosophers 
who  believed  in  the  existence  of  God  or  of  gods,  did  not 
believe  in  his  or  their  justice.  In  our  times,  the  two  ideas 
are  rather  inseparable.  But  it  is  because  the  idea  of  God 
entails  the  idea  of  perfection  that  one  cannot  deprive 
deity  of  an  attribute  which  is  recognized  as  ideal  even 
aside  from  him.  Thus  the  transcendent  nature  of  justice 
is,  even  for  the  most  religious  mind,  above  even  that  of 
divinity.  It  is  therefore  quite  useless  to  plunge  into  theo- 
logical complications  which  can  be  of  no  use  to  human 
logic.  The  problem  of  the  existence  of  God  is  foreign 
to  that  of  metaphysical  justice  and  should  be  avoided 
by  it. 

If  it  were  necessary  to  go  back  to  divinity  in  order  to 
establish  the  metaphysics  of  law,  the  clear  and  precise 
principle  of  transcendental  justice  would  be  quickly  ob- 


§3]  LAW  AND  MORALITY  485 

scured.  For  the  idea  of  God  may  contain  an  infinity  of 
attributes  and  we  should  be  reduced  to  the  Daedalian 
task  of  making  them  agree  among  themselves.  The  rig- 
orous analysis  which  alone  can  furnish  a  solution  would 
be  definitely  and  permanently  dulled.  The  chaos  and 
the  arbitrariness  of  the  old  natural  law  would  again  be 
established. 

§  3.  Metaphysical  Law  and  Morality.  Then,  should 
the  Good  and  the  Just  in  a  metaphysical  generality  be 
bound  up  in  God  ?  If  they  are  both  emanations  from  the 
divine  will,  or  attributes  of  the  divine  person,  they  ought 
to  work  together  to  the  same  ends,  and  be  in  harmony 
in  their  human  manifestations.  Any  contradiction  be- 
tween them  is  impossible,  because  one  cannot  conceive  of 
a  human  action  commendable  in  the  eyes  of  a  divine  will 
and,  at  the  same  time,  blameworthy  in  the  eyes  of  the  same 
divine  will.  We  are  forced  to  this  disastrous  conclusion: 
Everything  that  is  good  is  just;  everything  that  is  just  is 
good.  At  one  blow,  the  idea  of  justice  is  ruined  for 
logical  thought. 

I :  Metaphysical  Law  Distinct  from  Morality.  This  is 
what  is  done  by  a  great  number  of  legal  philosophers 
who  are  not,  moreover,  all  theists.  They  consider  meta- 
physical law  a  part  of  morality.  Few  theorists  know  how 
to  erect  a  strong  and  insurmountable  barrier  between  the 
two  disciplines.  Morality  is  the  study  of  the  good ;  meta- 
physical law  is  the  study  of  the  just.  Each  of  these 
entities  should  remain  independent ;  they  may  very  well 
be  contradictory  to  one  another.  What  is  good  may  be 
just  or  unjust;  what  is  just  may  be  good  or  evil,  quite  as 
absolutely  as  what  is  just  may  be  useful  or  harmful, 
beautiful  or  ugly. 

It  may  be  good  to  exercise  a  certain  restraint  on  per- 
sonal liberty  in  order  to  turn  a  people  from  vice  and  lead 
it  to  virtue,  but  this  can  never  be  just.  It  is  very  pos- 
sible that  in  certain  cases  slavery  is  good;  it  is  logically 


486  METAPHYSICS  AND  LAW        [Cn.XIV 

impossible  for  it  to  be  just.  A  good  tyrant  may  bring 
happiness  to  a  people,  and  a  democracy,  unhappiness. 
But  democracy,  whatever  may  be  its  results,  will  always 
be  logically  more  just  than  despotism.  In  all  spheres  of 
social  life,  it  would  be  easy  to  place  goodness  and  justice 
in  contradiction. 

Those  who  have  confused  and  still  confuse  law  and 
morality  do  it,  moreover,  with  the  best  intentions.  They 
think  that  to  point  out  contradictions  between  the  two 
disciplines  would  be  to  weaken  the  authority  of  both. 
Would  virtue  not  lose  its  prestige  if  it  could  be  proved 
to  be  founded  upon  injustice  ?  And  the  just  which  would 
favor  vice  might  also  be  looked  upon  with  an  evil  eye. 
Let  us  leave  to  humanity  the  illusion  that  the  legislator 
can  always  be  just  and  good  at  the  same  time,  and  that 
everything  is  for  the  best  in  the  best  of  worlds.  That  is 
quite  worth  the  strain  on  logic. 

For  us,  nothing  would  excuse  a  strain  on  logic,  since  we 
are  engaged  in  an  intellectual  task.  But  even  aside  from 
this  decisive  consideration,  the  confusion  of  law  and 
morality  seems  to  me  to  present  the  greatest  practical 
dangers. 

1.  In  order  to  be  useful,  the  idea  of  justice  must  be 
strictly  contained  in  the  "suum  cuique."  We  cannot 
deviate  from  the  principle  by  a  hair's  breadth,  under  the 
pretext  either  of  the  social  rdle  which  the  individual  ought 
to  fill  in  this  world,  or  of  the  preparation  of  the  soul  for  a 
super-mundane  destiny.  If  the  formula  of  justice  cannot 
be  adapted  to  the  cut-and-dried  forms  of  the  argumenta- 
tion of  positive  logic,  there  is  nothing  left  but  to  abandon 
it  to  its  unhappy  lot.  Justice  will  then  be: 

(a)  A  word  which  serves  to  enrich  some  and  fool  others ; 

(b)  A  myth  which  allows  the  imagination  to  wander  in 
fantastic  regions; 

(c)  A  sentiment,  an  emotion,  a  nervous  state. 

And  under  these  three  forms,  justice  is  nothing  at  all. 


§3]  LAW  AND  MORALITY  487 

2.  If  metaphysical  law  is  a  part  of  morality,  justice  is 
an  element  of  the  good.    The  definition  of  the  part  pre- 
supposes the  definition  of  the  whole.    We  cannot  state  a 
definition  of  justice  before  we  have  stated  a  definition  of 
the  good.    Now  the  good  has  not  been  defined,  and  much 
water  will  flow  under  many  bridges  before  morality  finds 
its  formula.    Morality  is  a  form  of  metaphysics  which  is 
difficult  and  complex  in  a  different  way  from  law.    It  is 
encumbered  with  social  and  utilitarian  prejudices,  and  it 
is  difficult  to  see  how  it  can  be  disengaged  from  them. 
To  entangle  the  fortune  of  law  with  that  of  morality  is 
equivalent  to  establishing  a  definitive  check  on  the  in- 
telligence in  the  domains  of  high  metaphysical  thought. 
Will  the  idea  of  pure  justice  be  able  to  escape  all  the  in- 
terests and  all  the  rhetoric  which  desire  its  destruction? 
I  know  nothing  of  this.    But  if  it  attains  an  entirely  clear 
and  independent  isolation,  by  this  fact  alone,  it  will  have 
rendered  to  humanity  all  the  service  which  it  could  render 
it.    Morality  is  its  most  dangerous  companion. 

3.  The  judges  in  any  legal  system  should  be  obeyed. 
It  is  fortunate  for  everyone  that,  in  the  decision  of  contro- 
versies, they  appear  with  the  greatest  moral  prestige  that 
can  possibly  be  attributed  to  them.     It  is  fortunate  in 
one  sense  that  the  dispositions  of  the  law  appear  to  the 
contending  parties  as  being  at  the  same  time  just  and 
good.    Everyone  will  submit  to  them  the  more  willingly, 
even  against  his  interest.    If,  on  the  contrary,  it  is  neces- 
sary to  avow  that  some  particular  act  of  legislation  or 
some  judiciary  decision  is  just  but  immoral,  or  moral  but 
unjust,  one  will  have  fewer  scruples  about  violating  it  or 
discussing  its  provisions.     That  is  true.     It  is  a  good 
thing  that  the  law  inspires  confidence.     Nevertheless,  this 
confidence  must  not  be  exaggerated.    It  is  not.  a  bad  thing 
for  the  judge  especially  to  know  the  relativity  and  the 
fallibility  of  human  juridical  principles.    A  little  scepticism 
will  render  him  more  scrupulous,  more  indulgent  to  every- 


488  METAPHYSICS  AND  LAW       [Cfe.XIV 

one,  and  consequently  more  just.  How  many  judicial  mis- 
takes, both  civil  and  criminal,  are  born  of  the  belief  that 
laws  are  perfect  in  every  respect.  It  is  helpful  to  know 
that  the  law  is  often  faced  with  the  sad  alternative  of 
choosing  between  the  good  and  the  just. 

II:  Character  of  Juridical  Duty.  The  obligation  to  do 
right  constitutes  moral  duty;  the  obligation  to  act  in  con- 
formity with  justice  constitutes  juridical  duty.  But  ju- 
ridical duty  is  neither  imperative  nor  categorical.  Jurid- 
ical duty  is  a  line  of  conduct  laid  down  by  logic.  Now 
logic  gives  no  direct  commands.  "You  ought  to  pay 
your  debts"  means  nothing  logically.  "You  ought  to 
pay  your  debts,  if  you  wish  to  conform  to  justice"  is,  on 
the  contrary,  a  precise  formula.  Therefore,  juridical  duty 
is  purely  hypothetical,  that  is  to  say,  the  necessity  of  an 
action  results  from  the  hypothesis  that  one  wishes  to  con- 
form to  justice.  Accordingly,  to  introduce  the  categorical 
imperative  into  the  philosophy  of  law  would  be  to  drive 
logic  from  it.  It  behooves  us,  therefore,  to  exclude  it 
completely. 

From  the  practical  point  of  view,  this  is  to  be  regretted. 

The  categorical  imperative,  the  duty  which  arises  in  itself, 
obedience  with  no  other  motive  than  the  rule,  is  an  in- 
stinct, very  fortunate  for  the  masses,  which  greatly  facili- 
tates the  progress  of  society.  Historically,  it  may  well  be 
understood  that  a  long  discipline  created  in  our  mind  this 
habit  of  obedience  to  certain  practices,  and  that  by  degrees 
our  own  will  has  been  substituted  for  outside  tyranny. 
Hence,  that  vague  feeling  of  constraint  which  words 
scarcely  define.  One  can,  no  doubt,  escape  from  this  con- 
straint; but  it  leaves  the  one  who  disobeys  it  with  a 
certain  rather  superstitious  fear,  while  it  gives  the  one 
who  obeys  it  that  satisfaction  of  duty  fulfilled,  which  is 
considered  by  many  as  a  superior  state  of  conscience. 
Practically,  it  is  very  reasonable  to  strengthen  this 
sentiment  and  not  to  unsettle  it. 


§4]    METAPHYSICAL  AND   POSITIVE   LAW   489 

Intellectually,  hypothetical  duty  is  much  the  higher  of 
the  two.  He  who  obeys  in  order  to  obey  may  be  ignorant 
of  the  good  and  the  just;  but  he  who  obeys  because  it  is 
good  or  just  to  obey  is  the  only  one  who  "puts  the 
ideal  into  the  real,"  to  use  an  established  formula. 

§  4.  Metaphysical  Law  and  Positive  Law.  For  centuries 
and  centuries  metaphysical  thought  has  been  laboring  to 
put  the  ideal  of  justice  into  juridical  reality.  Its  work 
has  been  fruitful,  and  we  are  thankful  for  it.  But  its  rdle 
has  not  been  very  well  understood,  and  credit  has  been 
given  it  for  much  to  which  it  is  not  entitled.  The  ideal  of 
justice  would  not  be  sufficient  to  organize  any  civilization 
whatever.  But,  as  a  matter  of  fact,  its  rdle  is  not  to 
organize  but  to  appraise.  Its  evaluations  are  not  even 
general  and  do  not  bear  upon  all  the  elements  of  law.  The 
ideal  of  justice  can  only  give  directions  which  the  law 
will  follow  or  not  follow,  according  to  circumstances. 
It  is  therefore  from  its  nature  very  different  from  positive 
law. 

Positive  law  is  essentially  an  organizer.  Its  essential 
aim  is  order.  An  injustice  which  does  not  disturb  the 
established  order  concerns  it  only  to  a  slight  extent.  Law 
should  give  satisfaction  to  all,  especially  to  the  more 
restless.  Whereas  in  metaphysical  law,  which  is  a  kind 
of  logic,  an  injustice  remains  an  injustice  even  when  it  is 
patiently  endured.  The  gravity  of  the  injustice  is  de- 
termined, not  by  the  unrest  which  it  brings  to  society, 
but  by  the  degree  of  its  divergence  from  the  formula 
"Suum  cuique." 

Positive  law  draws  its  inspiration  from  the  just.  But 
it  follows  quite  as  readily  and  according  to  circumstances 
the  directions  of  the  useful,  of  the  moral,  and  even  that  of 
prejudice.  Primarily  it  must  satisfy  the  strongest  of  these. 
Its  domain  is  thus  infinitely  larger.  Certain  rules  of 
positive  law  are  absolutely  indifferent  to  the  idea  of  jus- 
tice; the  drawing  up  of  contracts,  and  the  interpretative 


490  METAPHYSICS  AND   LAW        [CH.XIV 

rules  of  the  will  of  parties,  are  nearly  always  of  this 
nature. 

In  order  to  maintain  order,  positive  law  should  foresee, 
make  regulations,  and  lay  down  the  principles  by  which 
future  controversies  will  be  decided.  Now  it  is  almost  im- 
possible to  lay  down  a  principle  which  cannot  give  unjust 
results  under  any  circumstances.  For  example,  it  is  neces- 
sary to  impose  certain  periods  for  the  performance  of 
certain  acts;  but  by  the  application  of  this  principle, 
certain  individuals  may  find  themselves  very  unjustly  de- 
prived of  their  rights.  In  general,  in  order  to  judge  a 
suit  with  entire  justice,  it  would  be  necessary  to  examine 
all  its  elements,  by  placing  oneself  at  the  time  of  the  suit 
itself,  that  is  to  say,  by  disregarding  all  general  rules 
previous  to  the  origin  of  the  controversy,  that  is,  all 
positive  law.  Free  discretion  alone  could  give  absolutely 
equitable  solutions  to  every  concrete  case.  The  judg- 
ment, the  judge's  decision,  which  is  the  normal  conclusion 
of  the  juridical  conflict,  may  be  just  incidentally  but  not 
necessarily  so. 

Metaphysical  law  and  positive  law  have  analogous  but 
seldom  absolutely  identical  elements.  Many  discussions 
between  theorists  of  the  law  arise  from  the  confusion  be- 
tween the  two  points  of  view.  Thus  the  definition  of  ju- 
ridical personality  may  be  very  different  in  one  case  from 
what  it  is  in  the  other.  From  the  point  of  view  of  justice, 
a  person  is  every  being  who  is  capable  of  suffering  from 
an  injustice.  If  one  dog  is  beaten  because  another  dog 
has  eaten  the  family  roast,  an  injustice  is  committed.  Car- 
rying to  an  absurd  extreme  the  theories  of  Descartes  upon 
the  mechanical  character  of  the  animal  instinct,  Male- 
branche  kicked  his  dog  twice,  saying,  "It  does  not  feel." 
This  is  a  very  ancient  opinion  and  one  very  difficult  to 
sustain.  The  downward  gradations  of  morality,  sensibility 
and  intelligence  in  the  scale  of  beings  are  imperceptible ;  no 
absolute  differentiation  is  possible.  Every  living  being, 


§4]    METAPHYSICAL  AND  POSITIVE  LAW    491 

every  form  of  consciousness,  every  subjectivity,  has  a 
right  to  justice,  even  without  knowing  it. 

Personality  as  capable  of  obligations  is  less  extended. 
The  one  who  owes  justice  is  the  one  who  knows  it.  For 
in  order  to  commit  an  act  of  injustice,  there  must  be  a 
certain  degree  of  appreciation  of  justice.  The  acting 
force  must  no  longer  be  a  purely  brute  force. 

In  positive  law,  the  personality  may  vary  according  to 
the  country  and  the  legal  system.  The  law  will  be  able  to 
define  for  individuals  the  varied  conditions  of  capacity, 
will,  and  social  standing  in  order  to  attribute  personality  to 
them.  Very  often  he  only  will  be  a  person  who  is  capable 
of  going  to  law,  conducting  a  suit,  and  maintaining  his 
rights  before  the  regular  tribunals.  No  others  will  be 
complete  juridical  beings. 

The  problem  of  sanction  is  also  very  different  in  the 
two  disciplines.  In  positive  law,  it  may  be  said  that 
sanction  is  the  distinguishing  characteristic  of  the  jurid- 
ical regulation,  and  that  the  necessity  of  sanction  dif- 
ferentiates law  and  morality.  (A  question,  moreover, 
which  has  been  poorly  studied  and  upon  which  it  behooves 
us  to  speak  with  great  reserve.)  For  metaphysical  law, 
such  a  proposition  would  be  untenable.  It  is  differenti- 
ated from  morality  by  its  very  object;  the  one  being  the 
science  of  the  just,  the  other,  the  science  of  the  good,  — 
irreducible  ideas.  Sanction  may  effect  one  as  well  as  the 
other.  Our  modern  laws  contain  as  much  or  more  of 
sanctioned  morality  than  of  sanctioned  justice,  and  in 
primitive  civilizations  the  proportion  of  moral  law  is  still 
greater. 

One  might  thus  run  through  the  various  elements  of 
the  two  disciplines  and  contrast  them.  The  essential 
thing  is  to  take  into  account  the  fact  that  metaphysical 
law  is  not  an  ideal  positive  or  Utopian  law,  but  a 
science  of  simple  logic.  It  does  not  propose  to  seek 
what  "ought  to  be,"  a  formula  void  of  any  logical 


492  METAPHYSICS  AND  LAW        [CH.XIV 

meaning,  but  what  conforms  or  does  not  conform  to  the 
"suum  cuique."  This  task  can  be  accomplished  with 
strictness  and  precision. 

§  5.  Ideas  Derived  from  the  Idea  of  Justice.  The  for- 
mula "suum  cuique"  may,  in  itself  and  apart  from  any 
m  r  1  or  social  idea,  furnish  an  infinite  number  of  corol- 
laries. It  is  not  necessary  to  go  beyond  the  most  ordinary 
theoretical  generalities  to  account  for  them.  One  is  so  ac- 
•customed  to  spend  without  consideration  the  treasures 
with  which  the  idea  of  justice  has  enriched  juridical 
thought  that  no  attention  is  paid  to  it.  Nevertheless, 
the  historical  development  of  law  would  be  incompre- 
hensible to  one  who  would  be  content  to  be  ignorant  of 
them. 

I:  Methods  of  Derivation.  One  might  develop  the  con- 
tent of  the  formula  by  a  deductive  and  geometrical  course 
and  draw  out  of  it  the  infinite  consequences  which  it  is 
capable  of  furnishing.  Thus  the  idea  of  liberty  results 
from  that  of  justice,  through  the  fact  that  he  who  is  re- 
stricted in  his  liberty  has  not  at  his  command  the  dispo- 
sition of  his  person  or  his  goods,  accordingly,  "he  does  not 
have  his  own."  Certain  derivatives  of  a  theoretical  nature 
have  been  brought  to  light  through  means  of  abstract 
logic.  Much  more  often  the  concrete  circumstances  of 
life  bring  about  the  recognition  of  certain  secondary  forms 
of  equity.  No  people  recognizes  all  the  justice  or  the 
injustice  in  its  laws  and  customs.  But  its  attention  is 
centered  upon  certain  iniquities  that  are  above  the 
average.  It  sets  itself  to  discover  —  if  there  is  no  opposi- 
tion —  the  formula  which  can  effect  their  disappearance 
and  prevent  their  return.  Thus  we  come  to  discover 
that  it  is  unjust  for  an  innocent  person  to  suffer  in  place 
of  the  guilty  one  merely  because  the  two  are  of  the  same 
nation  or  even  of  the  same  family ;  or  for  one  person  to  be 
able  to  appropriate  the  property  of  another  because  he 
knows  better  how  to  repeat  the  words  which  must  be  pro- 


§5]        DERIVED  IDEAS  OF  JUSTICE        493 

nounced  before  tribunals,  etc.  There  are  situations  in 
real  life  that  reveal  little  by  little  the  important  conse- 
quences of  justice  which  legal  philosophy  can  afterwards 
systematize. 

And  so,  even  today,  the  practitioner  continues  his 
efforts  to  disengage  new  elements  from  the  metaphysical 
idea  of  which  he  knows  the  formula,  but  not  the  nature 
and  scope.  Thus  of  relatively  recent  origin  is  the  prin- 
ciple according  to  which  the  one  who  occasions  a  new  risk 
to  others  in  order  to  profit  from  a  new  invention  should 
bear  all  consequent  damages  even  when  they  occur  through 
no  fault  of  his.  It  constitutes  an  unadulterated  derivative 
from  the  idea  of  justice.  So,  in  international  politics, 
the  "right  of  peoples  to  dispose  of  themselves,"  if  put  in 
a  form  which  would  exclude  all  arbitrariness,  would  be  an 
important  gain  for  juridical  metaphysics. 

Quite  to  the  contrary,  theorists  and  legal  philosophers  — 
at  least,  those  who  are  not  content  with  hazy  phraseology 
—  do  not  dare  to  pronounce  the  word  "justice,"  because 
if  anyone  should  push  them  to  the  wall  and  ask  them  the 
meaning  of  this  word  and  the  "raison  d'etre"  of  its 
authority,  they  would  have  nothing  to  reply. 

Legal  philosophers  are  more  particularly  paralyzed  in 
their  efforts  by  the  fact  that  they,  nearly  all,  if  not  all, 
confuse  the  metaphysical  basis  of  law  with  its  justifica- 
tion. A  law  may  be  justified  by  considerations  of  the 
most  varied  nature.  A  law  incontestably  unjust  may  be 
perfectly  justified  in  everybody's  eyes.  Take  as  ex- 
amples the  anti-alcoholic  laws.  If  the  dangers  of  alcohol 
are  such  that  three-fourths  of  the  population  of  a  country 
are  in  danger  of  dying  of  consumption  or  delirium  tremens, 
these  laws  are  perfectly  justified.  It  is  logically  imjx)S- 
sible  that  they  could  ever  be  just,  for  they  sanction  re- 
straint upon  individual  liberty  and  make  all  pay  for  the 
excesses  of  some.  If  such  laws  can  be  called  "just,"  the 
word  "justice"  can  no  longer  have  any  meaning  whatever. 


494  METAPHYSICS  AND  LAW        [Cn.XIV 

The  legislator  ought  to  have  the  courage  to  declare,  "My 
work  is  unjust,  but  considerations  of  an  important  char- 
acter compel  me  to  violate  justice."  This  straightforward 
declaration  would  permit  of  the  administration  of  the 
sometimes  salutary  but  always  dangerous  physic  of  in- 
justice whenever  it  is  strictly  indispensable  to  the  health 
of  the  social  body.  If,  to  be  sure,  one  tries  to  establish 
the  premise,  in  a  political  speech  or  a  newspaper 
article,  that  restraint  of  personal  liberty  can  be  reconciled 
with  the  idea  of  justice,  the  means  of  doing  this  success- 
fully in  the  eyes  of  even  an  educated  public  are  easily 
found  in  the  inexhaustible  pliancy  of  rhetorical  expression. 
This  is  to  pervert  the  intellect  by  rendering  impossible  any 
logical  elaboration  of  a  juridical  ideal ;  and  this  intellectual 
perversion  seems  to  me  more  ominous  to  the  future  of 
humanity  than  any  moral  perversion. 

Accordingly,  it  is  fitting  to  allow  each  of  us  his  place. 
To  the  politician,  the  task  of  manoeuvring  the  mechan- 
ism of  positive  laws  all  of  whose  elements  he  does  not 
understand,  but  whose  movements  he  can  approxi- 
mately foresee  by  virtue  of  his  wide  experience.  To 
the  philosopher  of  law,  the  study  of  the  just  for  the 
sake  of  the  just,  just  as  to  the  litterateur,  the  study 
of  art  for  art's  sake. 

Those  who  try  to  weld  together,  immediately  and  di- 
rectly, general  ideas  and  everyday  concerns  of  social 
life  can  create  neither  a  work  of  art  nor  a  work  of  science. 

One  of  the  most  fruitful  principles  of  modern  scientific 
labor  is  the  absolute  independence  of  the  theory  and  the 
practice  of  every  discipline.  However  profitable  for  the 
theoretical  and  the  practical  sciences  to  stand  in  juxta- 
position in  the  same  mind,  it  is  disastrous  to  join  them 
together  by  any  logical  connection. 

II:  Analysis  of  "Suum  Cuique."  A  schoolman  of  the 
twelfth  century,  to  whom  the  formula  "suum  cuique" 
might  have  been  submitted  for  interpretation,  would  have 


§5]  DERIVED  IDEAS  OF  JUSTICE  495 

begun,  according  to  the  methods  of  Aristotle,  by  observing 
that  it  contains  two  elements: 

(A)  Suum, 

(B)  Cuique. 

The  method  is  a  very  old  one  today.  Nevertheless,  I 
shall  not  hesitate  to  adopt  it,  since  I  find  nothing  better 
for  a  brief  analysis  and  classification  of  the  best  known 
elements  of  the  metaphysical  content  of  law. 

(A)  " Suum"  epitomizes  in  itself  the  whole  of  unilateral 
justice.     It  comprehends  the  totality  of  the  moral  and 
material  possessions  which  are  the  possible  complement 
of  personality;  or  in  other  words,  all  the  objects  utilizable 
in  one  way  or  another  in  the  development  of  a  subjectivity. 
The  estate  of  each  individuality  is  in  itself  unlimited. 
Robinson  Crusoe  may  take  anything  on  his  island  that 
suits  him  without  any  limitation;  he  may  do  anything 
that  he  wants  to ;  and  if  he  does  any  work,  it  will  be  solely 
for  his  own  benefit. 

(B)  But  this  estate  unlimited  in  power  ought  to  be 
granted  to  every  "cuique,"  being.    Each  individual,  to  be 
just,  should  desire  it  for  everyone  else  as  well  as  for  him- 
self.    In  fact,  the  collaboration  of  individuals  increases 
the  assets  to  be  shared.    It  increases  equally  and  in  very 
large  proportion  the  difficulties  of  such  sharing.     The 
"cuique"  restricts  the  "suum"  and  checks  its  power  of 
expansion.     The  justice  claimed  by  those  around  him 
alone  limits  the  justice  of  each  individual.    The  "cuique" 
expresses  therefore  the  justice  of  equilibrium.    The  com- 
bination of  unilateral  justice  and  the  justice  of  equilibrium 
forms  the  juridical  metaphysics  to  which  care  must  be 
taken  to  add  no  moral  or  social  idea  whatever  under 
penalty  of  destroying  its  logical  meaning. 

(A)   Principal  Elements  of  Unilateral  Justice. 

(1)  Subjective  Right.  The  "right"  of  each  individual  in 
positive  law  is  the  power  of  action  which  is  allowed  him 
by  the  legislator.  The  "subjective  right"  is  the  power 


496  METAPHYSICS  AND   LAW        [Cn.XIV 

of  action  which  is  logically  deduced  for  each  individual 
from  the  formula  of  justice.  The  "subjective  right"  is 
therefore  at  the  same  time  both  metaphysical  and  hypo- 
thetical. Positively,  individual  rights  do  not  exist  ex- 
cept through  force,  in  the  sense  that  they  are  nothing  in  so 
far  as  they  are  not  recognized  through  force.  But  the 
reasons  for  which  force  recognizes  them  may  vary  infi- 
nitely. Force  is  generally  more  interested  in  realizing 
order  than  justice.  Often,  order  and  justice  harmonize 
in  the  same  solution;  often,  also,  justice  may  be  the  chief 
concern  of  the  legislator,  just  as  "subjective  right"  and 
"positive  right"  may  accidentally  be  identical  without 
ever  becoming  confused.  "Subjective  right"  derives  all 
its  authority  from  pure  logic  aside  from  any  question  of 
its  realization. 

(2)  Individuality.  The  formula  "  suum  cuique  "  implies 
that  the  laws  derived  from  the  idea  of  justice  group  them- 
selves around  the  individual  and  have  their  "  raison  d'etre  " 
in  the  individual.    In  order  to  judge  of  the  justice  or  the 
injustice   of  any  law  whatever,    it   is    necessary    and 
sufficient  to  examine  how  the  condition  of  one  or  more 
individuals  may  be  affected  by  it. 

(3)  Liberty.    Liberty  implies  the  absence  of  hindrance 
to  individual  activity  whether  physical  or  moral ;  the  dis- 
position without  hindrance  of  the  physical  or  moral  person 
by  his  own  self.    To  confine  a  man  in  prison,  to  compel 
him  to  work  upon  some  specified  piece  of  work,  or  to  pre- 
vent him  from  saying  what  he  thinks,  is  to  take  away  from 
him  that  which  belongs  to  him  in  the  most  intimate  and 
indisputable  way,  it  is  accordingly  depriving  him  of  his 
own.     Liberty  therefore  is  one  of  the  most  essential  ele- 
ments of  justice.     Liberty  is  in  itself  absolute  and  un- 
limited.   It  can  be  restricted  only  by  the  liberty  of  others. 
The  liberty  to  commit  reprehensible  and  immoral  acts  — 
provided  they  harm  no  one  —  is  as  indispensable  to  justice 
as  that  to  commit  laudable  and  moral  acts. 


§5]  DERIVED  IDEAS  OF  JUSTICE  497 

(4)  Property.  The  formula  "suum  cuique"  recognizes  the 
fact  that  around  each  individual  there  is  a  nucleus  of  be- 
longings, of  animate  and  inanimate  beings,  which  he  can 
utilize  to  his  advantage.  It  does  not  tell  us,  it  is  true, 
how  this  accessory  exterior  of  each  personality  has  estab- 
lished itself  or  why  it  would  be  unjust  to  deprive  any  in- 
dividual of  it.  The  formula  presupposes  that  question 
solved,  and  its  solution  is  not  indispensable  to  the  develop- 
ment of  the  idea  of  justice.  Let  us  point  out,  however,  the 
two  most  probable  solutions. 

1.  Development  of  Personality  through  Labor.  —  Man 
has  no  subjective  right  except  that  of  his  own  person.    But 
through  his  activities,  his  labor,  he  creates  new  objects 
which  would  not  exist  if  he  had  not  existed.    From  labor 
and  combinations  which  may  follow  it  arises  property, 
which  represents  the  industrial  and  moral  activity  of  the 
individual. 

2.  Universal  Vocation.  —  Every  objectivity  may  ap- 
propriate to  itself  everything  useful  around  it.    Everyone 
may  take  possession  of  what  does  not  belong  to  anyone 
else.     Wherever  the  being  is  not  restricted  by  another 
being,    it    may    develop    indefinitely.      Thus    Robinson 
Crusoe  could  take  anything  on  his  island  that  he  wanted. 
Thus  one  may  acquire  unoccupied  land  by  occupying  it. 

The  two  theories  have  played  their  part  in  the  phi- 
losophy of  law.  They  have  a  historical,  psychological  or 
constructive  interest.  From  the  metaphysical  point  of 
view,  the  theory  of  the  universal  vocation  of  every  sub- 
jectivity would  be  preferable;  to  demonstrate  this  would 
lead  us  too  far  afield. 

Many  ancient  civilizations  assimilated  family  rights 
with  those  of  property.  The  father  of  the  family  had 
over  his  wife  and  children  the  same  rights  that  he  had 
over  his  slaves,  who  were  themselves  assimilated  with 
inanimate  objects.  This  state  of  affairs  was  evidently 
contrary  to  justice  by  the  fact  that  the  subjectivity  of  tiie 


498  METAPHYSICS  AND  LAW       [CH.XIV 

wife,  children  and  slaves  was  sacrificed  to  one  man.  But 
in  case  every  member  of  the  family  is  able  to  attain  freely 
his  or  her  maximum  of  expansion  or  development,  family 
rights  may  be  compared  with  property  rights. 

(B)  Justice  of  Equilibrium.  Since  every  personality  has 
the  same  right  to  expand  without  limitation,  each  is  ob- 
liged to  endure  restrictions  which  are  necessary  to  the  ex- 
pansion of  the  personality  of  others.  Thus  each  one's 
liberty  and  property  are  limited  by  the  liberty  and  prop- 
erty of  others.  One  fulfills  his  duty  toward  others  when 
he  respects  their  rights.  Duty  is  therefore  negative  in 
principle.  The  more  persons  living  in  a  small  place,  the 
narrower  becomes  the  domain  of  each,  and  the  more  he 
is  compelled,  in  order  not  to  injure  others,  to  submit  to 
a  multitude  of  material  and  often  moral  regulations. 

The  whole  of  the  justice  of  equilibrium  is  summed  up 
in  respect  for  the  liberty,  the  personality  and  the  property 
of  others.  Metaphysically  a  distinction  must  be  made 
between  ownership  of  inanimate  things  and  that  of  ani- 
mate things,  things  endowed  with  consciousness  and 
capable  of  suffering.  Anyone  who  has  entirely  within  his 
estate  an  inanimate  object  may  dispose  of  it  without 
restriction.  If  the  inanimate  object  is  in  the  estate 
of  some  one  else,  he  should  refrain  from  it  entirely  in  this 
respect.  If  the  object  is  at  the  same  time  within  his  and 
another's  estate,  property  rights  of  diverse  nature  will 
arise  to  regulate  the  action  of  each. 

The  ownership  of  animate  things  encounters  a  new 
limit  in  the  object  of  ownership  itself.  In  proportion  as 
the  right  to  free  expansion  of  the  owned  being  goes  on  in- 
creasing, the  right  to  the  free  disposition  of  the  being  by 
the  owner  goes  on  diminishing.  Thus,  no  one  has  the 
right  to  torture  any  animal.  If  it  is  a  question  of  an  in- 
telligent animal  which  may  have  a  vague  understanding 
of  justice  and  injustice,  it  would  be  committing  an  in- 
justice to  strike  it  without  reason.  From  its  embryonic 


§5]  DERIVED  IDEAS  OF  JUSTICE  409 

stage  to  its  full  physical  and  intellectual  development, 
the  human  being  passes  through  every  stage.  The  rights 
of  those  who  have  given  it  life  thus  diminish  gradually 
without,  however,  ever  disappearing  absolutely.  Termi- 
nologically,  the  rights  of  parentage  and  those  of  ownership 
may  be  distinguished.  Metaphysically,  they  are  almost 
identical. 

In  the  theory  of  contracts,  the  contrast  between  the 
principles  of  metaphysical  law  and  those  of  the  majority 
of  positive  laws,  is  particularly  marked.  According  to 
the  idea  of  justice,  no  one  is  ever  "obligated"  to  another. 
The  idea  of  obligation  is  reduced  to  respect  for  the  estate 
of  others.  Whoever  detains  an  element  of  the  patrimony 
of  another  ought  to  return  it;  whoever  detains  an 
equivalent  of  the  patrimony  of  another  ought  likewise 
to  return  it.  All  contracts  have  as  their  object  the 
changing  of  the  elements  of  the  patrimonies  of  one  or 
more  individuals  and  replacing  them  by  their  equivalents. 
If  the  vendor  would  not  give  up  the  thing  sold,  or  the  buyer 
would  not  pay  the  price  and  would  retain  an  equivalent, 
thus  diminishing  the  patrimony  of  another,  either  would 
violate  the  principle  "to  everyone  his  own." 

Accordingly,  the  principle  that  promise  or  consent 
creates  obligation  is  foreign  to  the  idea,  of  justice.  Respect 
for  the  promise  was  based  originally  on  religious  ideas; 
later,  on  considerations  of  personal  dignity,  order  and 
general  security.  A  minor  who  borrows  money  from  a 
usurer  at  a  usurious  rate  has  made  a  promise  of  payment 
which  is  not  legally  valid.  When  he  arrives  at  his  ma- 
jority, three  courses  are  open  to  him: 

(a)  To  restore  neither  the  capital  nor  the  interest, 
which  would  be  permissible  by  law,  since  his  promise  has 
no  legal  force.  By  acting  thus,  he  would  commit  an  in- 
justice, as  he  had  benefited  by  the  goods  of  another.  In- 
justice, but  legal,  without  doubt;  morally  justified, 
perhaps,  but  injustice. 


500  METAPHYSICS  AND  LAW       [Ca.XIV 

(b)  To  reimburse  the  capital  and  the  legal  interest. 
In  which  case,  he  would  do  more  than  the  law  demanded, 
in  order  to  satisfy  the  idea  of  justice. 

(c)  Finally  to  reimburse  the  capital  and  pay  the  il- 
legal interest.    In  this  case,  he  would  decide  that  to  take 
refuge  behind  legal  prescriptions  in  order  to  repudiate  his 
promise,  would  be  a  lessening  of  his  personal  dignity.    He 
would  prefer  to  suffer  an  injustice  in  order  to  preserve 
his  word  at  its  maximum  value. 

It  may  be  seen  by  this  example  that  however  lofty  may 
be  the  moral  import  of  the  obligatory  character  of  the 
promise,  it  can  never  be  traced  back  to  the  idea  of  justice. 

It  is  plain  that  if  anyone  promises  a  friend  to  give 
him  something  and  does  not  do  it,  he  does  not  commit  an 
injustice,  —  at  least,  understand,  when  his  promise  does 
not  wrong  this  friend  indirectly.  Whoever  promises  to 
sell  an  object  which  belongs  to  him  for  a  trifling  sum, 
and  does  not  deliver,  fails  to  keep  his  word  but  does  not 
commit  any  injustice.  If  he  keeps  his  word  and  gives 
up  the  object  for  the  price  agreed  upon,  he  will  be  acting 
honorably  but  will!  be  committing  an  injustice  to  himself. 

For  a  contract  to  be  just,  after  its  execution  the  patri- 
monies of  the  parties  to  it,  although  changed  in  their 
nature,  must  remain  equal  in  value.  If,  as  a  result  of 
the  contract  itself,  there  is  an  increase  of  wealth,  this  in- 
crease ought  to  be  shared  equitably  by  the  parties. 

Many  jurists  in  the  most  widely  divergent  times  and 
countries  have  been  inspired  by  these  principles.  The 
Mussulman  law  tried  to  realize  them  wholly  in  its  positive 
law  of  contracts.  Every  contract  which  procures  an  ad- 
vantage for  one  of  the  parties  through  the  fact  that  the 
two  performances  are  not  strictly  equal  in  value,  is  an 
usurious  contract.  The  "riba"  signifies  "increase"  and 
also  "usury,"  since  every  increase  in  the  patrimony  of 
one  of  the  contracting  parties  is  an  injustice  as  regards 
the  other. 


§5]  DERIVED   IDEAS  OF  JUSTICE  501 

In  practical  life,  it  is  very  difficult  to  maintain  strictly 
the  principles  of  justice  in  matters  involving  contracts, 
and  especially  in  commercial  dealings.  The  order,  the 
welfare,  the  material  prosperity,  and  above  all,  the  security 
of  transactions  are  quite  clearly  opposed  to  ideal  justice  in 
transactions.  If  it  is  legitimate  and  even  advisable  to 
give  preference  in  practice  to  the  first-named  considera- 
tions, the  philosophy  of  law  cannot  neglect  to  point  out 
the  true  situation  of  contractual  law  in  relation  to  the 
idea  of  justice. 

The  applications  of  the  idea  of  justice  to  criminal  law 
are  very  well  known  and  seldom  disputed.  The  right  to 
punish  is  —  from  this  point  of  view  —  based  solely  upon  the 
need  of  protection  of  personalities  and  their  patrimony. 
That  no  one  can  be  punished  for  the  fault  of  another  is 
one  of  its  most  elementary  principles. 

Ill:  Governmental  Justice.  In  principle,  he  whose  indi- 
vidual rights  are  respected,  from  the  civil  as  well  as  from 
the  criminal  point  of  view,  ought  to  be  entirely  satisfied. 
It  matters  little  to  him  to  what  he  owes  his  protection. 
Whether  it  be  a  prophet,  a  warrior,  an  absolute  monarch, 
an  assemblage  of  nobles  or  of  rich  men,  or  a  popular  as- 
sembly, which  protects  every  sensible  being,  the  essential 
point  is  that  justice  be  most  truly  respected  in  the  indi- 
vidual. A  government  derives  its  chief  justification  from 
its  works.  Whatever  its  form  or  its  origin,  the  degree  of 
its  respect  for  individual  rights  constitutes  its  true  claim 
from  the  point  of  view  of  justice. 

Civil  and  criminal  justice  is  justice  of  the  first  degree. 
Political  justice  is  justice  of  the  second  degree.  It  results 
from  this  fact  that  in  order  to  obtain  efficient  protection 
for  their  individual  rights,  private  citizens  are  obliged  to 
pay  something  to  their  governments.  If  they  give  some- 
thing from  their  patrimony  and  do  not  obtain  this  pro- 
tection, they  are  deprived  of  the  expected  equivalent  and 
the  rule  "suum  cuique"  is  violated.  So  that  if  there  are 


502  METAPHYSICS  AND   LAW       [Cn.XIV 

constitutional  forms  which  assure  better  protection  to  indi- 
viduals for  a  less  amount  of  money,  these  constitutions 
are  the  more  just.  It  is  therefore  the  right  of  everyone 
to  choose,  in  so  far  as  possible,  the  government  which  he 
believes  the  most  just  and  the  individuals  he  thinks  the 
most  capable  of  assuring  him  of  justice. 

Another  consideration.  Through  the  sums  drawn  from 
individual  wealth  there  is  created  a  capital  intended  to 
remunerate  the  government,  that  is,  the  persons  who  per- 
form its  functions.  Every  social  organization  creates, 
therefore,  to  the  detriment  of  each  individual,  a  new  form 
of  wealth  over  which,  accordingly,  each  individual  has  a 
right.  Every  function  of  social  protection  is  a  value 
which  cannot  be  attributed  to  any  single  person,  but 
over  which  all  have  relative  rights.  Therefore,  the  as- 
signing of  public  offices  will  be  accomplished  with  more 
or  less  justice  according  to  the  different  constitutions. 
The  ideal  would  be  for  every  citizen  to  become  an  office- 
holder in  his  turn,  or  that  public  positions  would  be  drawn 
by  lot.  Serious  practical  reasons  are  opposed  to  these 
methods.  Nevertheless,  the  constitutional  history  of 
many  countries  shows  that  the  equitable  distribution  of 
public  offices  has  been  given  careful  consideration. 

IV:  International  Justice.  In  international  public  law 
or  law  of  nations,  certain  rules  deal  directly  with  the 
physical  being  of  individuals  and  constitute  rules  of  justice 
of  the  first  degree.  The  relations  between  State  and 
State  concern  justice  only  as  regards  the  consequences 
which  may  ultimately  fall  upon  private  persons.  The  re- 
action may  be  more  or  less  immediate,  but  the  injustice 
commences  only  at  the  time  when  one  or  more  individuals 
are  affected  in  person  or  through  their  sentiments  or 
their  interests. 

So  it  is  in  theory;  in  practice,  it  has  been  long  since 
recognized  that  international  affairs  ought  to  be  dealt 
with  more  circumspectly  and  equitably  than  questions 


§  5  ]  DERIVED   IDEAS  OF  JUSTICE  503 

of  civil  or  criminal  law.  Acts  of  injustice  committed 
against  individuals  are  more  serious  in  theory,  but  less 
dangerous  in  practice  than  acts  of  injustice  committed 
aginst  collectivities.  Just  as  rabbits  are  accustomed  to 
being  eaten,  individuals  are  accustomed  to  injustices  from 
their  superiors,  their  equals  and  their  inferiors.  They  be- 
come resigned  to  it  very  easily,  and  if  they  complain,  they 
must  occupy  some  privileged  position  to  be  able  to  attract 
any  attention.  To  clash  even  lightly  with  the  interests 
of  a  group,  is  to  strike  a  beehive  or  an  ant-hill;  it  will 
take  a  long  time  for  quiet  to  be  reestablished.  As  re- 
gards the  making  of  international  law,  the  difficulty  is  not 
to  discover  a  sanction  but  to  establish  rules  equitable 
enough  to  be  accepted  by  all  countries.  In  a  civil  code, 
justice  may  be  treated  very  cavalierly.  Those  who  are 
not  satisfied  cannot  make  much  fuss.  On  the  other  hand, 
a  code  for  nations  would  be  a  delicate  thing  to  draw  up, 
for  the  least  injustice  would  rouse  susceptibilities  and  un- 
dying rancor.  Here  lies  the  true  difficulty  of  the  future 
—  which  no  one  seems  to  suspect. 

Some  of  the  ideas  we  have  just  set  forth  will  appear  — 
and  with  good  reason  —  to  be  entirely  commonplace,  while 
others  will  seem  paradoxical.  As  a  matter  of  fact,  none 
of  them  are  new.  Both  kinds  are  contained  logically  in 
the  formula  "suum  cuique,"  and  result  from  it  necessarily 
without  the  intervention  of  any  foreign  conception.  The 
ordinary  derivatives,  such  as  the  prohibition  of  gain  to 
the  detriment  of  others,  the  principle  of  personal  respon- 
sibility, and  the  limitation  of  everyone's  liberty  by  the 
liberty  of  others,  have  been  brought  together  in  classic 
works  and  are  stereotyped  forms.  But  the  necessary 
equivalence  of  performances  will  appear  more  unusual. 
These  are  deductions  of  the  same  grade,  obtained  by  the 
same  methods  apart  from  any  positive  or  desirable  law. 
If  all  the  derivatives  have  not  been  perceived  in  their 
entirety,  they  have  been  in  detail;  and  it  is  thus  that  the 


504  METAPHYSICS  AND   LAW       [Cn.XIV 

metaphysical  idea  of  justice  has  played  a  considerable 
part  in  the  history  of  law. 

§  6.  The  Old  Natural  Law.  "The  irreducible  natural 
law,"  Professor  Ge*ny  calls  it.  This  profound  and  scholarly 
jurist  has  minutely  analyzed  the  most  modern  systems  of 
juridical  philosophy.  He  has  made  a  kindly  and  impar- 
tial criticism  which  allows  nothing  to  be  lost  that  can  be 
utilized.  He  has  tried  to  make  the  scattered  efforts  of 
theorists  fit  in  together,  and  if  he  puts  aside  a  great  num- 
ber of  theories,  it  is  not  in  order  to  reject  all  previous 
ideas  and  immediately  build  up  his  own  construction. 
This  construction  should  be  the  work  of  all,  and  he  ap- 
peals to  the  most  recent  as  well  as  to  the  most  out-of- 
date  schools.  He  gathers  together  all  of  those  who  base 
their  systems  on  solid  arguments.  The  classic  systems  of 
natural  law  are  examined  at  the  end  of  the  work.  Is  that 
not  the  right  place?  They  are  there  declared  to  be  in 
certain  respects  "invincible."  And  upon  the  cover  is  in- 
scribed like  an  epigraph:  "The  irreducible  natural  law." 
It  is  a  very  great  success  for  a  discipline  which  one  had 
supposed  condemned  without  further  appeal. 

However,  while  recognizing  that  it  is  impossible  to 
fashion  any  philosophy  of  law  without  asking  natural 
law  for  one  of  its  foundations,  notably  the  transcendence 
of  the  idea  of  justice,  Geny  has  no  intention  to  resuscitate 
the  "Code  of  Nature,"  its  naive  optimism  and  all  the 
childish  illusions  of  a  period  when  the  sweetness  of  life 
was  better  appreciated  than  the  art  of  reasoning.  Natu- 
ral law,  according  to  Geny,  can  only  give  direction.  It 
would  have  everything  to  lose  by  a  minute  regulation  of 
the  details  of  existence.  It  is,  therefore,  partly  positive 
and  partly  desirable  law. 

This  reduced  natural  law,  which  it  would  be  unjust  to 
hesitate  to  commend,  does  not  correspond  in  its  practical 
aim  to  the  metaphysical  law  we  have  attempted  to  elab- 
orate, but  does  correspond  to  it  in  the  classification  of 


§6]  THE  OLD  NATURAL  LAW  505 

the  diverse  and  varied  intellectual  forces  that  are  com- 
bined in  juridical  discipline.  The  history  of  law  is  an 
element  in  the  great  history  of  human  thought.  No  one 
who  fails  to  take  into  account  its  psychological  complex- 
ity can,  according  to  my  view,  understand  it.  Now  all 
the  civilizations  of  the  past  have  had  systems  of  legal 
metaphysics.  They  have  recognized  the  idea  of  justice, 
have  made  solid  deductions  from  it  and  often  applied  it 
practically  and  ingeniously.  But  no  positive  law  has  ap- 
plied it  regularly  and  constantly,  to  do  which  would  be 
impossible  even  in  our  day,  and  will  probably  always 
be  so. 

Ancient  thinkers  —  like  many  modern  ones  —  believed 
that  justice  was  the  supreme  justification  and  injustice 
the  supreme  condemnation  of  any  law.  In  the  face  of  in- 
stitutions which  were  dear  to  them  but  not  in  accord  with 
the  formula  "suum  cuique"  reduced  to  its  simplest  expres- 
sion, they  invented  processes  of  justification  applicable  to 
everything,  which  had  a  semblance  of  logical  form  but 
were  in  reality  entirely  arbitrary.  In  them  the  idea  of 
justice  was  subordinated  to  two  indefinable  entities,  rea- 
son and  nature. 

Natural  law  is  that  which  is  disengaged  from  nature 
through  the  effort  of  reason  alone.  The  principles  of  jus- 
tice are  quite  as  rightful  a  result  of  this  collaboration  as 
are  many  other  principles. 

I :  Reason.  This  word  may  be  taken  in  the  most  varied 
senses.  It  may  be  applied  to  the  logical  faculties  of  the 
human  mind,  and  to  the  labor  of  intensive  thought,  as 
well  as  to  the  vaguer,  unmotivated  intuitions  that  are 
aroused  by  habits  and  current  manners. 

If  natural  law  were  a  work  of  pure  logic,  it  would  not 
be  within  general  reach,  for  however  simple  the  first  prin- 
ciples may  be,  work  rigorously  deductive  rapidly  becomes 
difficult  to  follow.  All  mathematics  rests  upon  extremely 
simple  principles  but  cannot  be  pursued  far  except  with 


506  METAPHYSICS  AND   LAW       [Cn.XIV 

very  severe  mental  tension.  Works  on  natural  law  have 
never  been  of  this  character.  The  most  complex  prob- 
lems they  contain  are  solved  easily  and  pleasantly.  The 
most  ignorant  and  inattentive  will  understand  best  and 
be  the  most  thoroughly  convinced.  Those  who  read  with 
too  careful  attention  will  be  bad  pupils  —  they  will  re- 
main sceptical  and  profit  least  by  the  teaching. 

"God  must  have  given  to  merely  reasonable  man  the 
lights  necessary  to  govern  his  welfare  and,  accordingly,  to 
discover  without  effort  the  principles  of  what  is  good  and 
just,"  said  Barbeyrac.  Aside  from  any  religious  question, 
a  celebrated  legal  philosopher  of  the  nineteenth  century, 
in  order  to  justify  a  pleasant  but  rather  light  work  which 
had  just  come  from  his  pen,  wrote,  "Do  not  reason  too 
much  in  law." 

The  reason  of  natural  law  is  therefore  an  undefined  psy- 
chological state,  a  sort  of  divination,  intuition  or  effort- 
less understanding,  of  which  a  very  ordinary  brain  would 
be  capable.  It  would  correspond  to  the  minimum  of  in- 
tellectual power  that  could  be  demanded  of  a  human 
being.  This  extremely  meagre  faculty  would  derive  its 
value  from  its  universality.  Can  we  indeed  idealize  cere- 
bral labor  of  so  low  an  order  and  claim  its  product  to  be 
the  most  precious  element  of  juridical  science? 

Arab  philosophers  have  at  least  had  the  merit  of  seeing 
the  difficulty.  For  them  —  or  at  least,  for  some  of  them  — 
the  reason  which  reveals  justice  is  not  the  ordinary  rea- 
son of  the  public  engaged  in  the  struggle  for  life.  It  is 
the  reason  of  the  best  minds  at  the  most  serious  moments 
of  their  existence.  Justice  is  unveiled  to  him  who  medi- 
tates upon  death,  to  him  who,  above  all  earthly  interests, 
can  contemplate  law  as  a  pure  and  simple  abstraction 
that  directs  humanity  without  appealing  to  its  passions. 
The  thought  of  death  prepares  one  to  understand  justice. 
The  bringing  together  of  these  two  ideas  is  astonishing  at 
first  glance;  only  by  degrees  is  the  sublimity  of  it  under- 


§6]  THE  OLD  NATURAL  LAW  507 

stood.  The  intellect  thus  purified  by  the  absence  of  the 
interests  of  everyday  life  is  without  doubt  better  fitted  to 
discover  the  ideal  law;  nevertheless  it  does  not  possess 
enough  authority  for  one  to  trust  to  it  alone. 

II:  Nature.  This  word  is  even  more  vague  than  the 
word  reason.  What  nature?  "The  nature  of  things" 
answer  the  theorists  who  wish  to  be  more  practical.  That 
explains  nothing.  What  nature  of  what  things? 

The  glossators  pointed  out  that  the  Roman  juris- 
consults extolled  the  word  "natura"  in  a  dozen  meanings 
and  their  analysis  was  not  especially  strict.  Whoever 
would  take  the  trouble  to  investigate  in  detail  the  differ- 
ent meanings  of  this  expression  in  the  principal  works  on 
natural  law  in  the  principal  countries,  would  perhaps 
come  very  near  to  a  hundred.  The  Greek  <pvais  is 
affected  by  this  same  vagueness  and  adapts  itself  to 
every  system  of  philosophy.  Anything  can  be  gotten 
out  of  such  an  ill-defined  expression.  "Nature"  may 
designate  as  well  the  physical  properties  of  a  body,  the 
force  which  manifests  itself  in  animate  beings,  or,  the 
logical  consequences  of  a  stated  principle.  "Nature" 
represents  sometimes  a  spiritualistic  and  sometimes  a 
materialistic  divinity. 

Its  most  exact  meaning  would  be  the  physical  proper- 
ties of  things  which  certainly  act  upon  laws.  Thus  a 
region  which  suffers  from  drouth  will  probably  be  ac- 
quainted with  legislation  in  regard  to  irrigation,  unknown 
in  a  country  where  the  soil  does  not  require  watering. 
The  material  nature  of  things  may  dictate  measures  of 
utility,  not  those  of  justice.  It  can  never  serve  to  ap- 
praise the  moral  side  of  the  law.  Moreover,  if  the  phys- 
ical nature  of  things  sometimes  intervenes  in  a  theory  of 
natural  law,  no  attempt  has  ever  been  made  to  erect  an 
entire  system  upon  it. 

Since  the  two  bases  of  the  discipline  are  defective,  the 
discipline  itself  is  condemned  by  this  fact.  Many  other 


508  METAPHYSICS  AND  LAW       [Cfc.XIV 

faults  might  be  found  with  it,  but  we  have  no  intention 
of  going  through  the  list.  It  may  be  remarked,  however, 
that  the  marriage  between  Reason  and  Nature,  the  action 
of  the  one  upon  the  other,  is  far  from  being  easily  under- 
stood and  will  be  explained  by  philosophical  fancies 
rather  than  by  sane  logic. 

Thus  according  to  Berkeley,  "Nature  is  a  thought  of 
God's,  impressed  upon  human  thought."  Here  the  intel- 
lectual and  internal  element  absorbs  the  objective  and 
external.  For  others,  on  the  contrary,  it  is  nature  which 
absorbs  reason,  it  is  she  who  is  the  reasonable  being.  In 
this  they  share  the  opinion  of  a  philosopher-poet: 

"Oui  nature,  ici-bas  moti  appui,  mon  asile, 
C'est  ta  fixe  raison  qui  met  tout  en  son  lieu." 

Natural  law  is  an  old  compromise  between  an  old  sys- 
tem of  metaphysics  and  an  old  positivism.  It  involves  a 
deification  of  nature  that  no  religion  can  reject,  since  for 
all  religion  nature  is  a  divine  work. 

Likewise  atheists  formerly  accepted  it  willingly,  for  they 
were  able  to  conceive  it  under  a  purely  material  form. 
But  the  logician  refuses  to  ratify  this  compromise  and 
asks  that  metaphysical  suppositions  be  clearly  distinct 
from  any  positive  or  natural  elements.  To  give  the  name 
"natural"  law  to  the  metaphysical  elements  of  law  would 
be  a  fatal  misconception  which  must  be  avoided  at  any 
price. 

§  7.  The  History  and  the  Metaphysics  of  Law.  The 
manifestations  of  the  idea  of  justice  in  legal  history  have 
occurred  under  two  different  forms:  (a)  Under  a  con- 
crete and  practical  form,  by  the  substitution  of  more 
equitable  for  less  equitable  institutions,  through  the  in- 
troduction into  legal  technic  of  principles  derived  from 
the  idea  of  justice;  (b)  under  an  abstract  and  theoret- 
ical form,  by  the  elaboration  of  doctrines  designed  to  con- 
nect law  with  philosophy  as  a  whole  and  to  give  it  the 


§7]  METAPHYSICS  AND  HISTORY  509 

prestige  which  thinkers  have  always  attributed  to  specu- 
lative reason. 

As  in  every  question,  the  "practical  and  the  theoretical 
life  of  the  idea  of  justice  are  independent  of  one  another. 
In  history,  civilizations  entirely  destitute  of  legal  philos- 
ophy are  often  seen  to  advance  rapidly  in  their  apprecia- 
tion of  the  meaning  of  justice;  and  other  civilizations 
with  fine  theories,  to  sanction  very  inhuman  dispositions. 
The  agreement  between  theory  and  practice  is  accidental 
and  not  necessary.  This  is  very  easily  explained  by  the 
fact  that  the  theorist  and  the  practical  worker  are  nearly 
always  two  distinct  individuals,  and  that  even  in  cases 
where  the  two  qualities  may  be  encountered  in  the  same 
mind,  it  is  always,  in  fact,  an  impossibility  for  metaphys- 
ical thought,  to  entirely  absorb  juridical  science,  just  as, 
inversely,  the  most  positive  practical  worker  cannot  avoid 
completely  every  abstract  conception  of  justice. 

What  influence  the  doctrines  of  the  Stoics  may  have 
had  upon  the  reforms  in  pretorian  law,  and  the  Scrip- 
tures upon  English  equity,  it  is  difficult  to  say.  It  is  per- 
haps not  as  direct  as  might  be  supposed.  Those  most  de- 
void of  any  philosophical  knowledge  have  metaphysical 
conceptions  which  they  may  apply  frequently;  it  is  only 
the  systematization  that  they  find  impossible.  This  is 
generally  the  mental  state  of  the  practitioner.  Thus 
metaphysical  thought  follows  a  two-fold  course  in  the 
law,  under  a  fragmentary  and  logically  disconnected  form 
in  the  intellectual  life  of  the  masses,  and  under  a  logical 
and  systematic  form  in  works  on  legal  philosophy. 

We  shall  content  ourselves  with  pointing  out  the  popu- 
lar form,  the  study  of  which  would  absorb  a  large  part 
of  the  history  of  law,  and  with  making  some  suggestions 
upon  the  scholarly  form  and  the  way  in  which  it  has  been 
manifested  in  humanity. 

"Continuity"  is  often  mentioned  in  the  development 
of  natural  law.  If  by  this  it  is  to  be  understood  that  the 


510  METAPHYSICS  AND   LAW        [Cn.XIV 

principles  of  legal  philosophy  have,  in  the  course  of  pro- 
gressive evolution,  assumed  more  and  more  breadth,  pre- 
cision, and  efficacy,  nothing  would  be  more  erroneous  than 
to  affirm  this  continuity.  The  various  civilizations  have 
been  very  unequally  favored  by  the  philosophy  of  law. 
Thus  jurist-logicians  are  seldom  jurist-philosophers.  The 
Roman  jurisconsults  and  the  Talmudists  are  in  the  first 
category,  the  Greeks  and  the  Arabs,  rather  in  the  sec- 
ond. Thus  one  meets  with  very  valuable  monuments  of 
legal  philosophy  in  ancient  times,  while  quite  recent 
epochs  are  very  poor  in  this  respect. 

In  the  days  when  the  metaphysics  of  law  flourished 
with  the  greatest  splendor  the  same  opposition  was  re- 
produced almost  identically.  Some  are  seen  to  affirm  the 
transcendency  of  the  idea  of  justice  as  an  emanation  from 
divinity,  others  claim  that  it  springs  from  human  thought 
and  from  its  harmony  with  nature;  others  still,  deny  it 
any  objective  existence  and  consider  it  a  purely  relative 
and  conventional  conception.  More  irreconcilable  atti- 
tudes could  not  be  adopted;  but,  very  often,  the  confusion 
in  terminology  conceals  the  opposition  of  ideas,  and  after 
the  first  reading  of  the  works  of  two  philosophers,  one 
might  be  tempted  to  believe  that  they  had  said  almost 
the  same  thing  when  they  had  said  exactly  the  opposite. 

1.  Greece  is  one  of  the  greatest  strongholds  of  natural 
law.  Her  oldest  poems,  and  her  dramatic,  oratorical  and 
philosophical  works,  present  equally  varied  and  personal 
ideas  upon  the  idea  of  justice. 

The  philosophy  of  law  may  borrow  largely  from  ancient 
mythology  as  well  as  from  recent  philosophy.  It  will  find 
there  an  inexhaustible  wealth  of  conceptions  upon  the 
idea  of  justice.  The  divinities  who  represent  it  more  or 
less  are  numberless.  Each  has  its  special  character,  rank, 
and  province. 

It  is  first  of  Motpa,  or  AI<ra  Motpa,  that  Homer  speaks. 
A  colorless  and  mysterious  figure  whose  power  is  extolled 


§7]  METAPHYSICS  AND  HISTORY  511 

and  dreaded,  but  whose  traits  remain  shadowy  She  rules 
the  gods  themselves  and  holds  their  destinies  in  her  hands. 
Jupiter  himself  is  compelled  to  obey  her.  She  is  Destiny, 
Fatality,  but  a  Destiny  and  a  Fatality  which  end  by 
giving  to  everyone  his  share  and  preserve  a  sort  of  equi- 
librium in  the  universe. 

0€/us  is  in  Homer  the  servant  of  Jupiter  and  is  charged 
with  the  duty  of  summoning  his  council.  Later  she  be- 
comes the  goddess  of  justice  and  the  representation  of 
positive  law;  but  of  an  ideal  positive  law.  She  represents 
perhaps  the  ancient  tradition  of  revealed  positive  law. 
The  laws  dictated  to  men  by  the  gods,  and  the  national 
customs  inspired  by  the  gods,  are  sacred.  Human  and 
divine  justice  are  believed  to  agree. 

At/CT/  invoked  by  Hesiod  is  the  daughter  of  Jupiter. 
Having  descended  to  earth,  she  returns  to  heaven  to  de- 
nounce to  her  father  the  crimes  of  the  great  and  of  kings. 
She  points  out  cases  of  injustice  and  sends  punishment. 
She  personifies  an  abstract  and  ideal  form  of  desirable 
law;  and  represents  doubtless  the  period  when  man  began 
to  doubt  the  sacred  character  of  his  positive  law  and  to 
understand  that  there  was  something  higher  than  the 
usages  of  his  everyday  life. 

Ne/ze<ns  is,  according  to  Hesiod,  daughter  of  Night. 
There  were  temples  in  her  honor  at  any  early  date.  God- 
dess of  vengeance,  she  punishes  the  wicked.  She  is  also 
the  instrument  of  the  jealousy  of  the  gods.  She  incar- 
nates two  contradictory  ideas;  that  human  happiness  is 
often  arbitrarily  destroyed  by  the  gods  because  they  are 
envious,  and  that  it  is  nevertheless  from  the  gods  that 
justice  emanates. 

Finally  the  'Epiv vves,  the  Roman  "furice,"  are  much  the 
most  dramatic  and  concrete  figures  by  which  Greek  my- 
thology has  personified  certain  elements  of  justice.  They 
are  connected  with  the  Motpa  in  a  way  that  is  rather  diffi- 
cult to  grasp.  They  are  the  implacable  administrators  of 


512  METAPHYSICS  AND  LAW         [CH.XIV 

the  severest  punishment,  but  likewise  the  protectors  of 
order  and  good  faith.  It  is  they,  especially,  who  assure 
the  fulfillment  of  promises. 

During  the  mythological  period  of  legal  philosophy  in 
Greece,  the  abstract  meaning  of  the  divinities  we  have 
enumerated,  is  often  changed.  Considerable  effort  has 
been  devoted  to  an  attempt  to  define  their  positions  but 
without  attaining  any  degree  of  success,  such  an  attain- 
ment being  probably  an  impossibility.  Without  disap- 
pearing entirely,  mythological  figures  receded  into  the 
background,  and  in  the  rational  period  of  legal  philoso- 
phy in  Greece,  they  claim  nothing  more  than  a  formal  in- 
terest. Thinkers  endeavor  to  state  abstractions  which 
may  serve  as  a  basis  for  the  idea  of  justice.  Then  they 
will  speak  of  tpvffLS,  nature;  of  NoOs  Vbyos  IVob/ii; 
reason,  intelligence;  of  Nojuos  aypatfos,  law  not  promul- 
gated, ideal  law,  as  opposed  to  No/x6s  ypa<pos,  positive 
law. 

But  every  one  takes  these  various  expressions  in  the 
sense  which  suits  him,  <pv(ns,  nature,  may  quite  as  well 
be  the  divine  will,  animal  life,  or  an  undefined  entity;  the 
Xo76s  is  for  one,  human  reason,  for  another,  universal  rea- 
son, and  the  aypa^os  ^6/xos,  a  religious,  a  natural  or  an 
ideal  law  according  to  the  author.  The  whole  terminol- 
ogy has  to  be  examined  with  the  greatest  care  before  dis- 
engaging from  it  the  ideas  it  conceals. 

This  rather  confused  terminology  ought  not  to  hide 
from  us  the  wealth  of  thought  in  the  juridical  philosophy 
of  the  Greeks.  To  tell  the  truth,  justice  properly  speak- 
ing, the  "suum  cuique,"  does  not  play  an  important  part 
in  ideal  law.  The  general  formula  which  comes  nearest  it 
speaks  of  giving  to  everyone  "according  to  his  merit," 
and  therefore  makes  the  vague  idea  of  merit  bear  the 
whole  weight  of  the  edifice  of  abstract  law.  The  major- 
ity of  authors  are  concerned  with  much  more  distant  con- 
siderations. 


§7]  METAPHYSICS  AND  HISTORY  513 

The  traditionalists,  such  as  the  At  KCUOS  of  Aristophanes, 
confuse  justice  with  respect  for  ancient  customs,  bad  as 
well  as  good.  It  is  sobriety,  and  respect  for  parents,  but 
also  the  sacrifice  of  intellectuality  to  physical  exercises. 
Innovators  catch  a  glimpse  of  the  equality  of  classes  and 
beyond  that  human  equality.  The  idea  of  hospitality,  a 
virtue  recommended  in  ancient  times  by  the  goddesses  of 
justice,  becomes  expanded.  It  creates,  in  an  intermediate 
period,  the  principle  that  not  only  must  a  stranger  be 
welcomed,  but  justice  must  also  be  rendered  to  him  as  to 
a  citizen.  It  develops  finally  into  the  stoical  morality 
that  shatters  definitively  the  narrowness  of  the  national 
spirit  which  is  a  heavy  weight  on  the  idea  of  law.  This 
new  spirit  is  wonderfully  well  expressed  in  the  famous 
formula,  "  I  am  a  fellow-citizen  of  every  man  who  thinks." 

The  ideal  of  many  Greek  thinkers  is  to  bring  the  law 
under  the  rule  of  the  harmony,  the  equilibrium  and  the 
moderation,  which  though  distinct  from  logical  justice 
seem  to  resemble  it  somewhat.  Pindar  was  inspired  by 
this  ideal,  and  the  Pythagoreans  tried  to  realize  it.  Thus 
they  recommend  a  constitutional  system  in  which  mo- 
narchical, aristocratic  and  democratic  principles  would  be 
harmoniously  combined  for  the  greatest  welfare  of  the 
city,  freed  from  ancient  rivalries. 

Modern  civilizations  could  still  benefit  from  the  riches 
of  Greek  thought.  As  yet  they  scarcely  know  the  first 
elements  which  are  summed  up  in  Plato,  Aristotle  and 
the  Stoic  Zeno.  What  belongs  to  the  three  schools  of 
which  these  three  philosophers  were  the  heads  is  confused 
under  the  expression  ' '  Greek  natural  law. ' '  There  are,  nev- 
ertheless, three  different  theories  opposed  in  many  re- 
spects. The  transcendency  of  Plato  is  foreign  to  Zeno, 
who  represents  metaphysical  immanence;  while  Aristotle 
prefers  to  dispense  with  everything  metaphysical  and 
conceals  the  difficulties  of  the  great  problem  under  a 
rather  obscure  terminology. 


514  METAPHYSICS  AND  LAW        [CH.XIV 

2.  In  Semitic  legislation  the  Law  of  the  Talmud  is  much 
more  logical  than  philosophical.    The  textual  argument 
by  analogy  or  the  "a  fortiori"  is  much  oftener  in  evidence 
than  the  argument  of  equity.    The  multiplicity  and  the 
complexity  of  rites  and  forms  smother  the  more  general 
juridical  principles.    The  great  value  of  this  monument  is 
in  the  subtlety  of  its  logic.     Certain  passages,  however, 
bear  witness  to  lofty  juridical  conceptions  and  are  akin  to 
legal  philosophy.    A  notable  instance  in  the  Talmud  of 
Babylon  is  the  tractate  Synhedrin,  particularly  the  Gemara 
(commentary)  to  the  1°— VI°  Mischna  in  the  first  chapter. 
And  in  the  same  work,  the  delightful  little  treatise  Aboth 
or  "  Maxims  of  the  Fathers."    Let  us  sum  up  from  it  that 
delicate    and    ingenious    observation    which    gives    four 
formulas  of  justice  as  it  is  practiced : 

According  to  their  character  men  adopt  four  different 
lines  of  conduct.  "What  is  mine  is  mine,  and  what  is 
yours  is  yours,"  says  the  ordinary  man.  "What  is  mine 
is  yours,  and  what  is  yours  is  mine,"  says  the  man  of  the 
lower  classes.  "What  is  mine  is  yours,  and  what  is  yours 
is  yours,"  says  the  pious  man.  "What  is  yours  is  mine, 
and  what  is  mine  is  mine,"  says  the  wag.  The  pious  man 
who  puts  himself  at  the  service  of  another  without  wish- 
ing to  take  from  him  any  of  his  liberty  may  seem  a  myth. 
In  any  case,  he  is  a  splendid  ideal.  As  an  offset,  the  real- 
ism of  the  fourth  principle  and  its  employment  by  a  num- 
ber of  politicians  will  not  be  disputed. 

3.  In  a  general  history  of  juridical  philosophy,  the  Mo- 
hammedan law  ought  to  hold  an  equal  place  with  the 
Greek  law.    The  general  tendencies  of  its  positive  inter- 
pretation are  such  that  recent  researches  have  shown  that 
it  is  essentially  directed  towards  equity,  moderation  and 
abstract  justice.     Furthermore,  it  possesses  a  rich  litera- 
ture bearing  upon  the  philosophy  of  law. 

A  great  many  commentaries  that  treat  of  the  general 
principles  of  law  arrange  them  according  to  periods,  ex- 


§7]  METAPHYSICS  AND  HISTORY  515 

tending  from  the  tenth  to  the  eighteenth  century  of  our 
era.  The  thirteenth  and  fourteenth  centuries  of  the 
Christian  era  are  particularly  well  represented.  Unfor- 
tunately very  few  of  these  works  are  translated;  many 
have  not  even  been  printed  in  Arabic.  Besides,  the  prin- 
ciples of  legal  philosophy  have  to  be  disengaged  from  re- 
ligious principles  on  the  one  hand,  and  from  general 
elementary  summaries,  on  the  other. 

The  aim  of  several  of  these  treatises  is  to  explain  ju- 
ridical language  and  give  advice  upon  the  administration 
of  justice  and  the  art  of  pleading.  Others  express  true 
theories  of  juridical  philosophy  accompanied  by  princi- 
ples of  religious  conduct.  Such  is  the  treatise  upon  the 
basis  of  laws  by  Mohammed  ibn  Elfanari,  who  lived  from 
1350  to  1430  A.D.  He  labored  thirty  years  on  his  work,  in 
which  he  assembles  the  most  general  juridical  principles, 
emphasizing  alike  the  Koran,  the  "Sunna"  (tradition),  the 
" idjma "  (agreement  of  scholars) ,  the  "  qlas "  ("measure  or 
analogy")  and  human  reason.  This  treatise  is  entitled 
"Kitab  fasul  albadaici  fi  Osul  achcharaj',"  "An  Original 
Treatise  upon  the  Foundations  of  Laws." 

It  may  also  be  remarked  that  the  Arabic  language  pos- 
sesses a  rich  terminology  for  expressing  the  idea  of  justice : 
"adabun,"  "birrum,"  "haqun,"  "hikmatun,"  "ratlun," 
"adlun,"  etc.  The  wealth  of  the  vocabulary  is  generally 
a  trustworthy  index  of  the  development  of  the  idea  and 
the  importance  attributed  to  it.  It  would  therefore  be 
a  very  fortunate  thing  to  be  better  informed  concerning 
the  natural  law  of  the  Islamites. 

4.  In  spite  of  the  unity  of  dogma,  the  Christian  natural 
law  presents  neither  unity  nor  continuity,  if  by  continu- 
ity must  be  understood  regular  improvement  in  the  same 
direction.  If,  on  the  contrary,  it  is  a  question  of  finding 
in  the  Middle  Ages,  in  the  very  depths  of  the  Middle 
Ages,  the  origins  of  principles  which  are  fully  developed 
by  writers  of  the  seventeenth  century,  the  toil  of  investi- 


516  METAPHYSICS  AND  LAW        [Cn.XIV 

gation  will  certainly  end  in  attributing  to  these  numerous 
precursors  greater  precision  of  ideas  than  the  pupils  pos- 
sessed. We  will  not  fix  any  "dies  a  quo"  to  the  history 
of  the  doctrines  of  the  natural  law  of  Western  Europe,  for 
it  would  always  be  possible  to  move  backward  by  some 
centuries  the  origin  of  theories  which  have  perhaps  always 
germinated  in  Christian  civilization.  In  the  thirteenth 
century,  the  philosophy  of  law  is  full  blown.  It  is  repre- 
sented by  four  great  classes  of  thinkers,  whose  methods 
and  starting  points  are  essentially  different. 

(1)  The   Romanists   seek   to   develop   the   principles 
of  natural  law  and  justice  by  laying   emphasis   upon 
the  texts  of  Roman  Law;  by  compiling  and  systematizing 
all  the  formulas  scattered  through  the  compilations  of 
Justinian.      Certain   glosses   untrammeled   by  form  are 
very  rich  in  subject  matter  and  have  insured  through  the 
centuries  a  remarkable  continuity  of  principles. 

(2)  The  Canonists  are  also  fond  of  laying  emphasis 
upon  texts  and  using  juridical  logic.     Intellectually  they 
are  very  closely  akin  to  the  Romanists.     But  they  have 
at  their  disposal  a  much  greater  wealth  of  authorities 
which  they  can  draw  upon  according  to  circumstances; 
the  Bible,  the  Gospel,  the  writings  of  the  Church  Fathers, 
and  secular  literature.    This  wealth  is  not  without  dan- 
ger for  accuracy  of  thought.    The  whole  of  the  Corpus 
Juris  Canonici  and  its  innumerable  commentaries  present 
a  theory  of  Law  which  has  its  own  characteristics. 

(3)  The  Theologians  start  from  the  moral  point  of 
view.     They  wish  to  prevent  man  from  sinning  and  to 
prepare  him  in  this  life  for  his  eternal  destiny.    They  be- 
lieve that,  even  without  reading  or  instruction,  man  can 
discern  right  from  wrong.    They  meditate  in  order  to  hear 
the  voice  of  their  conscience  and  to  point  the  way  of  salva- 
tion to  those  who  have  not  the  opportunity  to  meditate. 

(4)  Finally,  the  so-called  Scholastic  philosophers  who 
are  impregnated  with  the  spirit  of  Aristotle  or  of  Plato, 


§7]  METAPHYSICS  AND  HISTORY  517 

or  who,  at  least,  seek  in  the  works  of  these  two  philoso- 
phers the  metaphysics  necessary  to  complete  the  Chris- 
tian belief.  We  may  name  Duns  Scotus,  Occam,  etc. 

As  a  matter  of  fact,  the  four  schools  do  not  preserve 
their  original  parallelism  throughout  their  whole  course. 
There  is  fusion  and  combination  among  them;  the  same 
mind  is  inspired  by  two  different  tendencies.  Thus  St. 
Thomas  Aquinas  is  primarily  a  theologian;  he  is  also  a 
philosopher.  In  the  thirteenth  century,  nearly  all  the 
Canonists  are  also  jurists,  and  vice  versa. 

5.  The  fourteenth  and  fifteenth  centuries  are  but  little 
known  from  the  point  of  view  of  juridical  philosophy; 
which  is  not  saying  that  they  are  lacking  in  interest.  The 
four  groups  continue  to  work  with  a  certain  independence. 
Thus  in  1374,  Pope  Gregory  XI  condemns  as  contrary  to 
natural  law  certain  institutions  preserved  by  the  Sachs- 
enspiegel,  notably,  the  ordeal,  the  exculpatory  oath,  com- 
purgators,  wager  of  battle,  prohibition  of  marriage  with  a 
violated  woman  or  the  widow  known  in  the  life-time  of 
her  husband,  the  incapacity  to  make  a  will  in  time  of 
sickness,  the  right  of  the  heir  to  retain  goods  stolen  by 
the  ancestor;  and  so  on.  The  scholars  who  commented 
on  these  decisions  made  natural  law  canonical.  One 
might,  on  the  other  hand,  compose  a  treatise  on  civil  nat- 
ural law,  by  collecting  a  great  number  of  passages  from 
Bartolus.  Theological  natural  law  would  find  numerous 
representatives,  but  philosophical  natural  law  no  longer 
existed  or  had  been  absorbed  by  one  or  the  other. 

In  the  sixteenth  century,  Spain  puts  forward  three 
minds  of  the  highest  rank,  Covarruvias,  Vasquez  and 
Suarez,  the  first  two  more  jurists  than  theologians,  the 
third,  more  theologian  than  jurist.  Is  there  any  trace  of 
Arab  influence  in  this  juridical  philosophy?  This  ques- 
tion has  not  been  cleared  up.  It  is  certain,  however,  that 
in  Spain  the  great  Arab  jurisconsults  of  the  thirteenth 
century  labored  over  the  principles  of  law.  A  notable 


518  METAPHYSICS  AND  LAW        [Cn.XIV 

instance  is  Abu  Mohamed  el  Jezirichi  who  lived  between 
1129  and  1200. 

The  seventeenth  century  inaugurated  the  epoch  of  the 
laymen,  —  lay  in  relation  to  religion  as  well  as  to  law. 
Grotius  and  his  successors  are  too  well-known  for  it  to  be 
necessary  to  introduce  them.  In  essence,  they  are  pri- 
marily compilers  of  the  whole  past,  and  rigorous  logic  is 
their  least  concern.  They  present  to  the  seventeenth  cen- 
tury a  certain  originality  of  thought,  by  which  the 
eighteenth  century  was  no  longer  to  be  marked. 

The  eighteenth  century  is  the  century  when  juridical 
ideas  became  popularized;  it  considered  itself  the  century 
of  philosophical  clarity.  Do  not  despise  it;  but  let  it 
serve  as  a  warning  to  us.  That  superficiality  which  ig- 
nores the  real  difficulties  of  thought  is  embarrassed  by 
nothing.  An  elegant  form  makes  ideas  popular,  but  only 
by  depriving  them  of  all  precision.  What  is  an  idea 
without  precision?  An  idea  without  precision  is  a  par- 
alyzed intellectual  effort,  often  more  dangerous  than  help- 
ful. By  popularizing  many  ideas  taken  from  the  old  nat- 
ural law,  the  eighteenth  century  brought  the  weak  points 
of  this  law  into  the  light  and  discredited  it  with  serious 

thinkers. 

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lagen und  Kodifikation  des  Volkerrechts,  in  Archiv.  fur  Rechts-  und 
Wirtschaftsphilosophie  (1913),  p.  145;  SCHOEN,  Zur  Lehre  von  den 
Grundlagen  des  Volkerrechts,  in  Archiv  fur  Rechts-  und  Wirtschafts- 
philosophie (1915). 

VIERKANDT,  Ueber  die  Stetigkeit  im  Kulturwandel;  Staat  und 
Gesellschaft  in  der  Gegenwart;  TROELTSCH,  Das  stoisch-christliche 
Naturrecht  und  das  moderne  profane  Naturrecht,  Verhandl.  des 
ersten  deutsch.  Social.-Tages  (1910);  D.  MANUEL  and  MUNAZ 
FLORES,  El  Deber  juridico  social;  SANZ  DEL  Rio,  Lecciones  sobre  el 
sistema  de  la  filosofia;  GINER  DE  LOS  Rios,  Filosofia  del  derecho; 
D.  RAFAEL  DE  URENA  Y  SEMENJAUD,  Discurso  (1906-1907);  RODRI- 
GUEZ SANCHEZ  DE  ARIVALO,  Suma  de  la  politica;  BARRETO  DE  MEN- 
EZES,  Questoes  vigentes  de  Philosophia  et  de  Direito;  PERETIAT 
Kowicz,  Die  polnische  Rechtsphilosophie  in  den  letzten  Jahren 
(1911-1914). 

BURLE,  La  notion  de  droit  naturel  dans  1'antiquite'  grecque, 
pp.  108,  149,  163  (1908)  (good  bibliography);  R.  HIRZEL,  Themis, 
Dike  und  Verwandtes  (1907);  A^pa^os  vo^o?  (1903);  CAILLEMER 
and  PAUL  GIDE,  Dictionnaire  des  Antiquit^s  grecques  et  romaines, 
see  AIK?;;  ERNEST  LYON,  Le  Droit  chez  Isidore  de  Peluse,  Etudes 
d'histoire  offert  a  P.  F.  Girard  (1913),  p.  209. 

AHLWARDT,  Verzeichniss  der  arabischen  Handschriftcn  konigl. 
Biblioth,  zu  Berlin,  IV.  B.  Jurisyr.  Philosophic;  FREYTAG,  Arabum 


520  METAPHYSICS  AND   LAW       [Cn.  XIV 

proverbia,  in  Lexicon  Arabico  Latinum;  MAHMOUD  FATHY,  Doctrine 
de  Tabus  des  Droits,  Preface  by  Lambert. 

POLLOCK,  The  Continuity  of  Natural  Law,  in  International  An- 
nals of  History.  Congress  of  Paris,  1900;  GRABMANN,  Die  Geschichte 
der  scholastischen  Methode  (1909);  STOCKUMS,  Die  Unverander- 
lichkeit  des  naturlichen  Sittengesetzes  in  der  scholastischen  Ethik; 
J.  KOHLER,  Die  spanischen  Naturrechtslehrer  des  16  u.  17  Jahr- 
hunderts,  in  Archiv  fur  Rechts- und  Wirtschaftsphilosophie  (1917); 
Lehrbuch  der  Rechtsphilosophie,  Einleitung,  pp.  8,  16,  Exkurs. 

CORAS,  De  Justitia  et  Jure  (1603);  HOOKER,  Religionis  naturalis 
et  revelatae  principia  (1754). 

THELIN,  La  liberte  de  conscience  (1917);  PICARD,  Esquisse  d'une 
histoire  g£n£rale  et  compare1  e  des  philosophies  medie  vales  (2d  ed., 
1907). 


CHAPTER  XV 
LIFE  AND  LAW 

§1.  INTRODUCTION.  —  §  2.  INSTITUTIONS:  (I)  SIMPLE  INSTI- 
TUTIONS AND  JURIDICAL  INSTITUTIONS;  (II)  ZONE  OF  VARIABIL- 
ITY OF  INSTITUTIONS;  (III)  VALUE  OF  INSTITUTIONS;  (IV)  AFFEC- 
TION FOR  AND  AVERSION  TOWARD  INSTITUTIONS;  (V)  PRESTIGE  OF 
INSTITUTIONS  AND  THEIR  DEVELOPMENT  THROUGH  ANALOGY.  — 
§3.  THE  ECONOMIC  FACTOR:  (I)  ECONOMIC  PSYCHOLOGY; 
(II)  ECONOMIC  LOGIC;  (III)  INTELLECTUAL  ADAPTATION  OF  MAN 
TO  THE  NATURE  OF  THINGS;  (IV)  INFLUENCE  OF  THE  NATURE  OF 
THINGS  ON  HUMAN  PSYCHOLOGY.  —  §  4.  THEORY  AND  PRACTICE: 
(I)  THEORETIC  AND  PRACTICAL  FUNCTIONS;  (II)  THEORETIC  AND 
PRACTICAL  METHODS;  (III)  THEORY  AND  PRACTICE  IN  THE  HIS- 
TORY OF  LAW. 

§  1.  Introduction.  We  very  often  contrast  theory  and 
practice,  intellectuality  and  action,  scientific  aw  and  life. 
These  are  rival  forces  which  some  try  to  reconcile,  while 
others  would  like  to  encourage  the  warfare  until  one  of 
the  two  should  triumph  definitively.  In  reality,  they 
represent  two  kinds  of  minds  which  cannot  understand 
each  other  and  will  remain  in  a  state  of  eternal  rivalry, 
or,  at  least  (to  speak  for  the  present  and  the  past)  are  and 
have  been  in  continual  rivalry.  Collaboration  between 
theorists  and  practical  workers,  although  always  by  force 
of  circumstances  rather  against  the  grain,  is  none  the  less 
necessary.  Joined  together  without  hope  of  a  definitive 
divorce,  they  accuse  one  another  mutually  of  egoism  and 
lack  of  understanding,  and  perhaps  neither  is  wrong. 
They  displace  each  other  in  popularity  according  to  the 
times  and  the  public  sympathy,  and  in  general,  a  person 
prefers  the  one  with  which  he  has  had  least  to  do. 

Thus  among  certain  theoretical  jurists,  Life,  Practice, 
and  Action  enjoy  great  prestige.  These  are  for  them 

521 


522  LIFE  AND  LAW  [Cn.XV 

mysterious  entities  to  which  it  is  easy  to  attribute  every 
good  quality.  They  possess  somewhat  cabalistic  virtues. 
One  speaks  of  them  with  respect  and  fear,  but  without 
any  especial  attempt  to  understand  them.  It  must  be 
admitted,  however,  that  until  lately  few  jurists  have  made 
any  very  laudable  efforts  to  point  out  precisely  what  is  to 
be  understood  by  life,  practice  and  action.  In  order  to 
leave  to  life  the  part  that  belongs  to  it  in  the  elaboration 
of  law,  or  to  estimate  what  it  has  already  done  in  the 
past,  is  it  not  necessary  to  know  what  it  is  ? 

This  is  perhaps  not  a  very  easy  task  and  can  scarcely 
be  undertaken  for  the  time  being  except  under  a  conven- 
tional and  arbitrary  form.  With  juridical  psychology, 
properly  speaking,  by  which  the  technic  of  law  is  elabo- 
rated, may  be  contrasted  non-juridical  psychology,  and  in 
the  second  group  may  be  put  everything  that  is  not  con- 
tained in  the  first.  Negative  and  rather  unsatisfactory 
classification  no  doubt.  Nevertheless,  it  will  suffice  to 
show  the  complexity  of  the  phenomena  which  are  impru- 
dently associated  in  one  and  the  same  expression. 

§2  Institutions.  I:  Simple  and  Juridical  Institutions. 
Sometimes  an  institution  is  defined  as  an  "established 
thing."  This  definition,  which  is  not  one  at  all,  is  no 
worse  than  any  other.  It  proves  to  us,  at  least,  that  the 
word  has  no  very  precise  meaning  and  that  the  elements 
invariably  contained  in  the  term  are  very  meagre.  The 
nucleus  of  the  idea  "institution"  is  only  the  habitual 
repetition  by  one  or  more  persons,  or  one  or  more  ani- 
mals, of  any  act  whatsoever.  An  institution  is  nothing 
else  but  a  habit.  There  are  individual  institutions  which 
do  not  differ  in  their  essence  from  collective  ones.  Each 
person  may  create  his  own  economical,  religious  and  fam- 
ily institutions.  They  will  be  general  without  being  col- 
lective, if  they  consist  of  acts  of  purely  individual  interest 
which  have  been  adopted  by  the  whole  body  of  persons 
living  in  common.  They  will  be  collective  or  social  if 


§2]  INSTITUTIONS  523 

they  relate  to  the  interests  of  the  whole  or  of  a  part  of 
the  collectivity.  Institutions  become  legal  when  any  au- 
thority whatever  imposes  them  by  the  strength  of  its  will; 
they  become  juridical  when  they  are  analyzed,  formulated 
and  interpreted  according  to  the  rules  of  juridical  tech- 
nic.  Institutions  are  changing  constantly,  and  these 
changes  constitute  a  large  part  of  history. 

The  inhabitants  of  the  town  of  Husal  had  acquired  the 
habit  of  carrying  bundles  upon  their  heads.  Nothing 
compelled  them  to  do  it,  for  every  person  could  carry  his 
bundles  as  he  pleased.  But  it  had  become  a  general  cus- 
tom. Now  on  the  Sabbath  day,  the  Hebrews  are  forbid- 
den to  carry  their  bundles  the  same  as  upon  other  days 
of  the  week.  Accordingly,  when  the  other  Jews  could 
carry  certain  objects  upon  their  heads  on  the  Sabbath 
the  inhabitants  of  Husal  could  not.  Here  a  simple  indi- 
vidual habit  which  became  generalized,  was  taken  into 
consideration  by  the  religious  and  legal  authority  and  was 
afterwards  commented  upon  by  juridical  science. 

Institutions  enter  and  leave  the  legal  and  juridical  do- 
main every  moment.  A  great  part  of  the  legislator's 
labor  consists  of  this  movement  of  inclusion  and  exclu- 
sion. To  endow  society  with  a  moral  personality,  to 
sanction  its  statutes,  to  create  a  government  monopoly, 
and  to  inflict  penalties  upon  certain  acts  not  yet  punish- 
able by  law,  are  so  many  movements  of  inclusion;  on  the 
contrary,  to  establish  general  freedom  of  association,  to 
proclaim  the  separation  of  church  and  state,  and  to  strike 
off  articles  from  the  list  of  offences  are  so  many  move- 
ments of  exclusion. 

The  transition  from  the  institution  "de  facto"  to  the  in- 
stitution "de  jure"  presents  itself  under  a  variety  of  forms 
which  the  juridical  historian  should  observe  very  closely. 
Sometimes  —  especially  in  advanced  civilizations  —  the  de- 
velopment takes  place  almost  simultaneously  and  in  the 
same  direction  in  both  domains.  It  is  possible  that  the 


624  LIFE  AND   LAW  [Cn.XV 

legislator  may  directly  introduce  a  reform  invented  by 
himself  which  has  never  been  put  into  practice  anywhere 
before  his  decision.  The  "de  facto"  institution  will  be 
from  its  beginning  an  institution  "  de  jure."  In  organizing 
a  new  form  of  taxation,  for  instance,  the  authority  in 
power  makes  an  innovation  without  the  collaboration  of 
those  who  are  to  be  subject  to  it. 

In  other  instances  —  especially  in  primitive  civilizations 
—  institutions  are  organized  down  to  the  smallest  detail 
and  perform  their  offices  with  a  considerable  degree  of 
regularity  before  authority  concerns  itself  with  them. 
Very  often  it  intervenes  then  only  to  protect  the  weakest 
elements,  those  most  exposed  to  attacks,  or  those  whom 
the  power  is  best  qualified  to  protect  or  has  the  most 
interest  in  protecting.  It  is  only  gradually  that  it  comes 
to  include  the  whole  round  of  elements.  In  this  case,  the 
history  of  the  formation  of  the  institution  is  entirely  in- 
dependent of  the  circumstances  which  brought  it  into  the 
legal  or  juridical  consciousness. 

The  institution  of  individual  or  family  property  is  in- 
finitely older  than  its  juridical  definition  and  description. 
Appropriation  of  land  particularly,  its  administration  and 
cultivation,  the  distribution  of  its  fruits  and  all  its  bene- 
fits, and  the  methods  of  transmission  by  sale  or  in  case  of 
death,  these  became  established  in  the  state  by  family  or 
tribal  usages,  outside  of  the  religious  or  the  secular  au- 
thority which  represented  sanction,  that  is  to  say  law. 
The  authority  in  power  began  by  granting  property  a 
partial  and  accidental  protection.  The  king,  who  held 
the  police  power  and  was  interested  in  the  maintenance 
of  order,  intervened  only  in  cases  where  there  was  a  dis- 
turbance of  order,  or  where  acts  of  violence  were  commit- 
ted by  two  individuals  or  two  groups  of  individuals  who 
were  trying  to  despoil  one  another.  The  intervention  of 
the  royal  power,  limited  in  the  beginning  to  the  mainte- 
nance of  the  peace  of  the  group  and  to  acts  which  threaten 


§  2  ]  INSTITUTIONS  525 

most  to  disturb  it,  becomes  more  and  more  frequent  and 
ends  by  protecting  property  in  its  every  form  and  ele- 
ment. Juridical  theory  then  draws  the  outlines. 

Thus  theft  and  plundering  by  violence  are  the  first 
occasions  which  allowed  law  to  concern  itself  with  the  in- 
stitution of  "property."  Theft  and  violence  mark  the 
point  where  the  actual  custom  enters  the  protection  of 
the  law.  And  this  is  of  prime  interest  as  regards  the  his- 
tory of  the  relationship  between  the  development  of  jus- 
tice and  that  of  individual  or  family  appropriation.  But 
property  is  perfectly  established  under  an  extrajuridical 
form,  when  this  connection  takes  place.  The  psycholog- 
ical phenomenon  of  appropriation  is  most  certainly  an- 
terior to  the  creation  of  measures  of  defence  against 
thefts.  This  is  not  simply  a  truth  derived  from  logical 
evidence.  It  would  be  very  easy  to  multiply  historical 
proofs  of  it.  In  times  when  all  thefts  did  not  justify 
the  intervention  of  justice,  there  existed  almost  complete 
systems  of  inheritance  and  processes  of  alienation  which 
implied  the  existence  of  a  property  institution  already 
complete  in  every  detail. 

II:  Zone  of  Variability  of  Institutions.  The  human 
mind  is  so  constructed  that  it  is  childishly  delighted  over 
the  similarities  and  dissimilarities  in  human  customs  and 
institutions.  When  the  traveler  finishes  recounting  in  his 
own  country  the  impressions  of  his  travels,  his  auditors 
ask  with  the  same  astonishment:  "How  can  they  have 
customs  so  different  from  ours?"  and  a  moment  after: 
"How  can  people  whom  we  do  not  know  have  customs 
so  like  ours?"  And  the  science  of  legal  history,  in  the 
person  of  the  great  minds  which  represent  it,  is  not  ex- 
empt from  this  alternate  surprise  at  the  great  difference 
and  the  great  resemblance  between  human  institutions. 
This  does  not  mean  that  the  problem  of  the  likeness  and 
unlikeness  of  institutions  and  their  development  in  their 
progress  toward  civilization  is  to  be  scorned.  Far  from 


526  LIFE  AND  LAW  [Cn.XV 

it.  It  is  the  problem  "par  excellence"  which  the  juridical 
historian  should  put  to  himself.  It  is  an  extremely  diffi- 
cult one  and  it  cannot  be  hoped  to  be  solved  for  a  long 
time.  It  is  not  necessary  therefore  to  suppose  the  prob- 
lem solved  and  to  be  content,  with  verifying  historically 
the  identity  of  the  solution  in  the  most  diverse  legal 
systems.  Furthermore,  it  is  no  more  necessary  to  point 
out  systematically  the  differences.  Suppose  an  ethnologist 
who  had  repaired  to  a  comparatively  unknown  land, 
should  have  all  the  inhabitants  march  before  him  and 
confine  himself  to  stating  in  regard  to  each  individual, 
"He  has  a  nose,  two  eyes  and  a  mouth."  That  would 
serve  no  great  purpose. 

In  the  evolution  of  law  there  are  certain  likenesses  in 
institutions  and  certain  likenesses  in  the  development  of 
institutions  which  are  to  be  proved.  But  when  they  have 
been  proved  with  accuracy  and  certainty,  it  is  well  that 
they  should  be  explained  philosophically.  If  this  explana- 
tion is  impossible  without  data,  any  investigation  neces- 
sary to  attain  it  should  be  made. 

At  no  moment  of  its  existence  does  an  individual  or  a 
people  enjoy  unlimited  freedom  in  the  creation  of  institu- 
tions. Hercules  hesitated  between  two  courses.  Others 
may  have  found  themselves  at  a  point  where  cross-roads 
lead  in  more  than  two  directions,  but  at  every  moment  the 
choice  is  limited  to  the  number  of  possible  solutions. 
What  limits  the  choice  of  a  line  of  conduct  by  an  individual 
or  a  people? 

(a)  It  is  limited  logically  by  the  number  of  available 
solutions.    Aside  from  every  concrete  consideration,  the 
number  of  processes  by  which  the  succession  of  an  indi- 
vidual may  be  regulated  is  limited.     Therefore,  every  in- 
stitution is  limited  by  the  construction  of  possible  or 
imaginable  solutions. 

(b)  This  choice  may  be  still  farther  limited  by  the  fact 
that  all   the  solutions  imaginable   are   not  within  the 


§  2  ]  INSTITUTIONS  527 

range  of  material  realization.  Thus  general  polygamy 
could  not  be  established  where  there  were  many  more 
men  than  women. 

(c)  By  the  collective  or  individual  psychology  which 
imposes  upon  the  man  or  the  group  a  certain  choice 
among  the  solutions  possible  at  a  given  moment. 

One  cannot  understand  the  reason  why  a  people  adopts 
a  given  institution  at  a  certain  time  in  its  history  if  one 
is  not  acquainted  with  the  totality  of  the  logical,  material 
and  psychological  possibilities  at  its  disposal  at  that 
moment.  If  given  the  situation  A  identical  among  an  n 
number  of  races,  we  prove  that  they  have  all  adopted  the 
solution  a,  this  single  fact  by  itself  is  of  no  significance. 
For  it  might  have  been  that  this  problem  could  have 
logically  had  but  a  single  solution.  If,  on  the  other  hand, 
a  thousand  solutions  corresponded  to  the  situation  A  and 
nine  hundred  and  ninety-nine  had  been  unanimously  neg- 
lected by  the  different  systems  of  legislations  in  favor  of 
a  single  one  this  consideration  would  be  of  quite  another 
interest  and  would  conceal  something  of  great  importance 
relatively  easy  to  discover. 

Without  blaming  the  generalizations  which  may  have 
been  made  under  the  impression  that  they  were  differ- 
ences or  resemblances  between  institutions,  we  shall 
consider  them  as  methods  of  work,  but  in  another  way,  as 
philosophical  interpretations  of  the  history  of  law. 

Ill:  Value  of  Institutions.  From  the  logical  point  of 
view,  to  say  that  one  institution  is  worth  more  than  an- 
other is  equivalent  to  saying  nothing.  The  idea  of  value 
in  itself  has  no  content.  It  is  necessary  to  choose  first 
of  all  the  scale  according  to  which  anything  whatever 
possesses  more  or  less  value.  A  moral  ideal  may  be 
chosen  as  a  scale  on  condition  that  it  can  be  defined. 
The  ideal  of  justice  may  be  chosen  since  it  can  be  strictly 
defined.  The  intellectual  development  of  the  whole  of  the 
nation,  the  material  prosperity  of  the  people,  or  even  the 


528  LIFE  AND   LAW  [Cn.XV 

sentiment  of  national  pride  may  each  be  taken  separately 
as  the  criterion  by  which  to  measure  institutions  from  a 
single  point  of  view. 

Having  chosen  a  standard,  it  is  possible  to  compare  with 
this  standard  various  institutions  of  the  same  nature  and 
to  tell  which  one  is  worth  more  than  the  others.  So  that 
having  chosen  two  institutions,  we  can  measure  them  with 
the  yard  sticks  of  morality,  justice,  economics,  patriotism 
and  so  on,  and  each  of  these  operations  may  give  us  a 
different  result.  Thus  it  would  only  be  by  a  very  ex- 
traordinary chance  that  the  institutions  would  always 
rank  in  the  same  order  according  to  the  various  standards, 
and  that  one  of  them  would  be,  with  respect  to  the  others, 
at  once  the  most  moral,  the  most  just,  the  most  desirable 
from  the  point  of  view  of  economics,  the  most  patriotic 
and  so  on. 

Since,  according  to  circumstances,  one  standard  or 
another  is  often  taken  without  any  indication  as  to  which 
one  has  been  chosen,  the  majority  of  judgments  of  values 
are  robbed  of  any  logical  character.  If  we  take  as  the 
criterion  "justice"  as  defined  by  the  "suum  cuique,"  it  is 
possible  to  say  which  one  of  two  institutions  is  the  most 
just.  Still,  it  is  necessary  to  distinguish  between  indi- 
vidual justice,  or  justice  of  the  first  degree,  and  political 
justice,  or  justice  of  the  second  degree.  Let  the  "demo- 
cratic republic"  be  compared  to  the  "absolute  monarchy." 
As  regards  political  justice,  the  "democratic  republic"  is 
certainly  always  superior,  through  the  fact  that  a  true 
democracy  tends  to  make  the  whole  body  of  citizens  share 
in  the  advantages  of  power  which  are  produced  by  the 
whole  body  of  citizens.  But  in  the  matter  of  individual 
justice,  it  is  impossible  to  give  so  plain  an  answer.  Ac- 
cording to  the  temperament  of  the  people,  a  democratic 
form  of  government  can  give  very  excellent  or  very  de- 
plorable results.  For  if  in  exchange  for  the  right  of  drop- 
ping a  slip  of  paper  into  a  ballot-box,  a  class  of  citizens 


§2]  INSTITUTIONS  529 

sees  itself  despoiled  of  life,  liberty  and  property,  it  would 
be  very  difficult  to  say  that  justice  would  accrue  to  these 
citizens  from  the  adoption  of  such  a  system.  Political 
justice  is  only  very  secondary  in  relation  to  private  justice. 

IV:  Affection  for  and  Aversion  toward  Institutions. 
Logically  speaking,  one  should  look  upon  all  institutional 
forms  with  the  greatest  scepticism,  for  none  of  them  neces- 
sarily contains  justice,  nor  right,  nor  material  or  intel- 
lectual prosperity,  and  still  less  all  of  these  virtues  at  the 
same  time.  It  is  indeed  difficult  to  calculate  what  pro- 
portion of  one  or  the  other  of  these  virtues  each  institu- 
tion may  contain.  Prudence,  reserve  and  some  degree  of 
hesitation  in  such  an  estimation  would  be  quite  in  place. 
In  reality  —  and  throughout  the  whole  course  of  history  — 
men  exhibit  great  feeling  in  regard  to  certain  of  their  in- 
stitutions. They  love  or  hate  them  intensely.  They  are 
often  ready  to  give  their  life  to  defend  those  which  are 
already  in  existence  or  introduce  those  which  they  have 
invented.  The  abstract  principles  of  law  and  justice 
leave  them,  on  the  contrary,  nearly  always  totally  in- 
different. A  historical  reason  might  be  given  for  this 
illogical  attachment.  In  primitive  ages,  many  races  be- 
lieved that  they  had  received  their  institutions  from  the 
divinities  that  they  worshipped,  so  that  long  psychological 
habit  led  them  to  make  divinities  of  their  customs  even 
in  epochs  in  which  they  had  lost  all  religious  beliefs.  But 
perhaps  this  historical  explanation  is  needless.  This  un- 
reasoning affection  belongs  to  the  general  psychology  of 
humanity,  to  its  mystical,  constructive  character,  and  to 
the  simplicity  and  onesidedness  of  its  intellectual  elabo- 
ration. Love  of  institutions  contains  the  poetry  of  habit 
for  the  conservative,  the  poetry  of  vision  for  the  radical. 
Is  it  desirable  that  humanity  be  deprived  of  these  pleasures 
although  they  are  not  without  danger? 

Attachment  to  institutions  is  without  any  great  incon- 
venience when  it  is  shared  by  the  whole  body  of  citizens 


530  LIFE  AND  LAW  [Cn.XV 

or  members  of  the  same  group.  But  differences  of  opinion 
upon  very  trifling  questions  may  lead  to  the  bloodiest 
conflicts  and  the  most  enduring  hatreds.  In  view  of 
such  instances  one  may  ask  oneself  whether  a  little  scep- 
ticism would  not  have  spared  humanity  many  sorrows. 
Besides,  all  institutions  are  not  equally  cherished  or 
despised.  There  are  those  which  remain  in  obscurity 
and  for  which  the  public  at  large  cares  little;  these  are 
the  best.  There  are  those  which  excite  enthusiasm  at 
first  and  then  lose  all  of  their  prestige;  let  us  still  class 
these  among  the  best.  For  when  affection  and  adulation 
are  heaped  upon  institutions,  all  of  their  irregularities 
are  overlooked  and  this  very  quickly  corrupts  their  nature. 
Those  which  legitimately  held  out  the  fairest  hope  shave 
quickly  succeeded  in  burdening  themselves  with  faults  or 
even  crimes.  Institutions  without  prestige  are  severely 
inspected;  good  work  is  demanded  of  them,  and  they  set 
themselves  to  producing  it  in  order  to  be  tolerated. 

These  various  considerations  should  not  be  lost  sight 
of.  They  are  very  important  to  the  understanding  of 
the  history  of  law. 

V :  Prestige  of  Institutions  and  their  Development  through 
Analogy.  The  fact  that  the  different  institutions  in  use 
by  a  people  enjoy  varying  degrees  of  prestige  in  its  eyes, 
is  of  great  importance  historically.  In  taking  up  one's 
position  at  a  given  period,  it  is  necessary  to  distinguish 
the  favorite,  the  indifferent,  and  the  unpopular  elements 
in  the  customs.  The  first  named  have  a  tendency  to 
impose  their  form  upon  all  the  others.  These  will  be  the 
types  which  every  institution  already  created  or  about  to 
be  created  will  try  to  resemble.  They  will  direct  the  de- 
velopment in  a  similar  direction  of  other  institutions. 

One  must  not  confuse  the  role  of  analogy  in  the  forma- 
tion of  institutions  with  that  reasoning  by  analogy  em- 
ployed in  juridical  technic  whose  mechanism  we  have  al- 
ready studied.  This  last  is  a  rational,  conscious  and 


§  2  ]  INSTITUTIONS  531 

deliberate  process;  the  analogous  formation  of  institu- 
tions is  unconscious,  or  at  least,  entirely  unpremeditated. 

Legal  systems  of  about  the  same  degree  of  civilization  are 
nearly  always  composed  of  the  same  institutional  elements. 
Whoever  confines  himself  to  seeking  for  and  substantiating 
their  presence  cannot  succeed  in  extricating  the  originality 
of  the  customs  he  is  studying  This  originality  consists 
particularly  in  improving  the  prevailing  elements.  The 
primitive  institutions  of  the  Romans  are  formed  around 
two  principal  elements,  the  authority  of  the  father  of  the 
family  and  the  narrow  nationalism  of  the  Quirites.  Or- 
ganizations of  paternal  and  marital  power  take  by  analogy 
the  form  of  dominical  power;  and  the  idea  of  "dominium 
ex  jure  Quiritium"  dominates  the  patrimonial  organiza- 
tion. The  depreciation  under  the  Empire  of  these  two 
ideas  entailed  the  slow  but  continuous  reconstruction  of 
all  institutions,  by  analogy  with  foreign  forms. 

In  the  Middle  Ages,  fief,  fealty  and  homage  formed  the 
central  institutions  upon  which  secondary  institutions 
were  modeled.  It  may  be  said  that  the  feudal  period 
ends  not  on  the  day  when  all  or  the  majority  of  feudal 
institutions  disappeared,  but  the  day  when  the  feudal 
contract  of  fief  ceases  to  be  the  analogous  type  of  forma- 
tion or  deformation  for  the  inferior  juridical  elements. 

For  the  force  of  analogy  acts  as  a  deforming  agent  by 
modifying  already  existing  institutions  so  as  to  give 
them  the  structure  which  predominates  at  a  given  mo- 
ment. Thus  in  countries  where  the  feudal  organization 
entirely  absorbs  landed  property,  or  where  the  principle 
"no  land  without  a  lord"  rules,  the  idea  of  the  fief  ob- 
trudes itself  so  forcibly  upon  the  collective  thought,  that 
sometimes  the  idea  of  private  and  independent  property 
is  inconceivable,  and  when  it  does  really  exist,  it  must 
be  clothed  "nolens  volens"  in  the  feudal  form. 

The  power  of  analogy  takes  the  lead  in  the  creation  of 
new  types.  If,  for  example,  a  primitive  people  living 


532  LIFE  AND  LAW  [CH.XV 

under  the  authority  of  a  king,  wishes  to  escape  the  tyr- 
anny of  a  single  individual  and  to  divide  the  power,  it  will 
nearly  always  employ  the  monarchical  form  with  some 
modifications.  It  will  create  two  petty  monarchs  with 
absolute  but  identical  power,  and  accordingly  both  will 
be  paralyzed.  It  will  constitute  a  certain  number  of 
petty  all-powerful  sovereigns  in  a  certain  but  limited  do- 
main. It  will  give  these  petty  sovereigns  only  a  temporary 
sovereignty  and  will  make  them  succeed  one  another 
rapidly.  Yet  it  is  on  the  ancient  kingdoms  that  the 
ancient  republics  were  built  up. 

In  every  age,  phenomena  of  the  same  nature  may  be 
verified  in  other  respects.  The  analogous  development 
of  law  has  many  traits  of  resemblance  with  the  analogous 
development  of  language  studied  by  linguists. 

§  3.  The  Economic  Factor.  To  estimate  even  vaguely 
the  importance  of  the  economic  role  in  the  development  of 
law  and  in  the  creation  of  institutions  would  demand  a 
threefold  efficiency  in  the  historical,  the  juridical  and  the 
economic  sciences.  If  one  is  not  versed  in  political 
economy,  one  cannot  even  state  the  problem  nor  foresee 
the  method  which  would  give  accurate  results  in  this 
regard. 

It  is  nevertheless  certain  that  taken  as  a  whole,  this 
economic  factor  is  of  considerable  importance.  It  is  not 
less  certain  that  economists  have  united  "en  masse"  to 
study  phenomena  which  are  of  very  varied  nature  but  con- 
verge toward  a  central  point,  the  science  of  economics 
itself.  For  those  who  do  not  concern  themselves  with  this 
convergence  and  do  not  study  economic  phenomena  in 
their  economic  results,  there  would  be  no  advantage  in 
preserving  this  incongruous  union  intact.  In  order  to 
utilize  them  in  philosophy  and  in  juridical  history,  it 
behooves  us  above  all  else  to  disassociate  them  and  throw 
into  relief  their  original  character.  Without  claiming  to 
conduct  this  operation  to  the  definitive  analysis  which 


§3]  THE  ECONOMIC  FACTOR  533 

would  be  fitting,  one  may  nevertheless  lay  down  the  fol- 
lowing classification  of  the  forces  to  which  the  term  eco- 
nomic has  been  applied  by  one  side  or  the  other : 

1.  Economic   Psychology:   the  intellectual   or  senti- 
mental phenomena  which  govern  the  acts  of  production 
or  acquisition  of  certain  things. 

2.  Economic  Logic:    A  series  of  intellectual  operations 
by  which  men  seek  to  utilize  any  knowledge  they  may  have 
of  the  economic  mechanism  in  order  to  regulate  according 
to  their  sentiments,  the  production,  acquisition  and  con- 
sumption of  things. 

3.  The  intellectual  adaptation  of  man  to  the  physical 
nature  of  things,  with  a  view  to  making  the  best  of  them. 

4.  Action  of  the  physical  properties  of  things  upon 
human  mentality:  Influence  of  environment. 

I :  Economic  Psychology.  The  science  of  economics  — 
superior,  perhaps,  in  this  respect  to  juridical  science  —  has 
striven  to  disengage  from  among  the  motives  of  human 
action  the  simplest  and  most  general  elements. 

What  do  men  seek?  Pleasure.  What  do  they  try  to 
avoid?  Pain.  What  are  the  conditions  of  human  exis- 
tence? The  gratification  of  a  certain  number  of  needs. 
To  this  gratification  of  primary  needs,  to  the  search  for 
pleasure  and  to  the  dread  of  pain  and  of  work,  which  is 
a  sort  of  pain,  it  is  necessary  to  add  foresight:  pleasure 
postponed  till  tomorrow,  pain  avoided  tomorrow,  gratifi- 
cation of  the  needs  of  tomorrow.  Such  are  the  elementary 
psychological  ideas  which  can  explain  economic  phenomena. 

This  psychological  state  leads  man  into  contact  with 
things.  The  physical  nature  of  things  predisposes  them 
more  or  less  to  provide  pleasure  for  man,  to  spare  him  pain 
and  to  satisfy  his  needs.  This  relationship  between  the 
material  qualities  of  things  and  the  economic  psychology 
of  mankind  gives  them  economic  qualities  which  are 
connected  with  the  ideas  of  value,  utility,  wealth,  and 
merchandise,  which  we  refrain  from  defining  here. 


534  LIFE  AND   LAW  [Cn.XV 

The  contact  between  the  two  groups,  the  active  and 
craving  beings,  on  the  one  hand,  and  the  passive  and 
temptings  things,  on  the  other,  determines  from  the  start 
certain  primary  actions;  namely,  production,  rapine,  and 
exchange.  Man  who  desires  certain  objects  can  only 
produce  them  —  in  the  very  broad  meaning  of  the  word  — 
or  wrest  them  by  force  from  those  who  have  produced 
them,  or  take  them  with  their  consent  by  giving  them 
other  objects. 

These  human  acts  repeated  constantly  through  history 
are  studied  by  widely  differing  methods  which  give  to 
each  school  its  originality.  The  attempt  is  made  to  dis- 
engage from  these  acts  certain  general  laws  to  which  each 
school  attributes  more  or  less  importance  and  universality. 
Such  are  the  following  principles:  "Man  tries  to  procure 
for  himself  the  maximum  of  pleasure  with  the  least  diffi- 
culty"; "The  price  varies  in  direct  ratio  to  the  demand 
and  in  inverse  ratio  to  the  supply";  and  "The  demand 
is  a  function  of  the  price." 

Accordingly,  political  economy,  its  syntheses  and  its 
laws,  are  of  great  importance  in  explaining  the  creation 
of  institutions.  Nevertheless,  the  economic  psychology 
necessary  to  the  understanding  of  the  history  and  the 
philosophy  of  law  is  not  absolutely  merged  in  that  of  the 
economists. 

(a)  Of  the  courses  of  action  men  pursue  in  order  to 
procure  goods  for  themselves,  economists  study  exchange 
above  everything  else,  production,  less,  and  rapine  very 
little.     This  is  easily  understood  since  this  plunder  is  for 
our  civilizations  an  abnormal  fact  which  must  be  sup- 
pressed and  not  directed.     From  the  historical  point  of 
view,  plunder  is  as  important  and  as  interesting  a  phenom- 
enon as  exchange  or  production. 

(b)  Political  economy  tries  to  obtain  general  explana- 
tions of  certain  phenomena.     It  may  neglect  the  particular 
and  accidental.    It  does  not  create  psychology  for  its  own 


§3]  THE  ECONOMIC  FACTOR  535 

sake.  It  studies  human  cravings  in  their  results  and  can 
do  so  quite  as  well  by  neglecting  completely  their  inner 
nature  and  confining  its  attention  to  their  exterior  mani- 
festations without  attempting  to  explain  them.  On  the 
other  hand,  if  one  seeks  a  philosophical  explanation  of 
the  origin  of  institutions,  the  most  fully  analyzed  ideas 
are  more  explanatory  than  most  general  ideas.  So  that 
the  psychological  syntheses  that  are  sufficient  for  the 
economist  require  analysis  in  the  philosophy  of  history. 

Thus  "interest"  or  the  "desire  to  amass  riches,"  an 
extremely  general  phenomenon  which  is  at  the  base  of  law 
as  of  .political  economy,  is  not  a  true  psychological  prin- 
ciple, for  according  to  the  individuals  and  the  classes  it 
rests  upon  different  intellectual  bases. 

From  all  time,  men  have  struggled  to  obtain  two  classes 
of  advantages : 

(a)  The  keenest  physical  and  intellectual  pleasures  for 
themselves  or  their  own.     They  seek  to  procure  for  them- 
selves certain  objects  which  they  desire  in  order  to  con- 
sume them  or  their  fruits  and  derive  from  them  all  the 
agreeable  sensations  which  such  a  consumption  can  evoke. 

(b)  The  power  which  gives  to  the  individual  —  aside 
from  any  pleasure  of  consumption  —  superiority  over  his 
fellows  and  allows  him  to  make  his  will  prevail. 

The  desire  for  consumption  and  the  desire  for  power  do 
not  perform  their  functions  to  the  same  extent  in  the  same 
spheres.  Among  the  masses,  desire  for  consumption  pre- 
dominates. It  often  plays  an  important  part  in  revolu- 
tions. In  struggles  between  aristocracies  and  between 
sovereigns  or  pretenders,  desire  of  power  is  the  stronger. 
The  desire  for  consumption  and  the  desire  for  power  do 
not  obey  the  same  laws.  The  first  diminishes  progres- 
sively with  the  consumption  itself  or  the  acquisition  of 
objects  to  consume  and  ends  quickly  with  satiety.  The 
desire  for  power  rather  increases  with  the  acquisition  of 
wealth  and  the  power  which  results  therefrom.  It  is  a 


536  LIFE  AND  LAW  [Cn.XV 

more  constant  incentive  to  toil  which  never  ends  in  sa- 
tiety, seldom,  perhaps,  even  in  satisfaction.  How  many 
millionaires  or  even  multi-millionaires  labor  desperately 
to  increase  their  fortunes  when  they  will  never  be  able  to 
spend  them  in  pleasure  of  any  kind.  These  are  not  gen- 
erally the  least  economical  or  the  least  selfish.  The  desire 
for  power  does  not  bear  simply  upon  economic  values; 
religious  matters,  public  office,  possession  of  land,  and 
commercial  dealings  are  likewise  its  object. 

The  invention  of  money  effected  a  great  transformation 
in  human  psychology.  It  brought  about  a  fusion  of  the 
idea  of  power  and  that  of  consumption.  It  is  from  the 
psychological  point  of  view,  the  power  of  consumption. 
Money  created  avarice,  an  apparently  enigmatical  but  a 
perfectly  logical  sentiment.  Anyone  who  holds  a  franc 
in  his  hand  has  potential  power  over  an  unlimited  number 
of  objects.  He  can,  in  imagination,  make  a  great  many 
different  uses  of  it,  all  of  them  realizable.  But  when  he 
has  given  his  franc  in  exchange  for  any  object  whatso- 
ever, he  no  longer  has  at  his  disposition  anything  except 
this  one  object.  Whatever  may  be  the  value  of  his  pur- 
chase, whoever  buys  always  loses  in  power,  whoever  sells, 
always  gains  in  power.  Likewise,  old  Cato  was  right  in 
saying  that  the  wise  father  of  a  family  ought  to  sell  much 
and  buy  little.  Whoever  buys  exchanges  a  considerable 
amount  of  power  for  a  little  enjoyment.  Thus  is  ex- 
plained this  attachment  to  all  money,  whatever  its  nature, 
the  simple  possession  of  which  has  been  for  a  long  time 
one  of  the  sources  of  the  most  profound  satisfaction  to  man. 

II :  Economic  Logic.  This  term  may  be  applied  to  the 
group  of  intellectual  operations  by  which  men  seek  to 
utilize  knowledge  of  the  economic  mechanism  in  order  to 
regulate  according  to  their  sentiments,  the  production,  the 
exchange  and  the  division  of  wealth.  More  simply,  this 
is  the  application  of  economic  theories  to  the  organization 
of  institutions. 


§3]  THE  ECONOMIC  FACTOR  537 

Only  very  civilized  countries  possess  large  schools  of 
economics  which  present  complete  systems  of  their  science 
to  which  the  lawmaker  may  go  to  get  official  advice.  But 
in  every  epoch  of  history,  there  have  existed  among  all 
classes,  certain  fragmentary,  sometimes  contradictory, 
economic  beliefs  born  of  incomplete  and  onesided  observa- 
tions and  hence,  often  vicious.  Although  poorly  grounded 
or  poorly  systematized,  these  beliefs  none  the  less  con- 
stitute true  economic  logic,  perhaps  all  the  more  forceful 
for  being  simple.  Thus  the  disapproval  of  objects  of 
luxury,  a  popular  sentiment  very  widespread  in  every 
epoch,  the  fact  of  seeing  in  land  or  in  ready  money  the 
only  true  wealth,  the  conception  that  the  earth  alone  is 
productive,  that  money  cannot  produce  interest  since  it 
does  not  multiply  by  itself,  and  so  many  other  old 
principles  that  are  to  be  found  everywhere,  constitute 
true  economic  theories.  Their  influence,  sometimes  for- 
tunate, sometimes  deplorable,  upon  institutions  and  cus- 
toms, has  been  continuous. 

In  every  age,  peasants  have  often  been  seen  to  refuse 
to  admit  peddlers  into  villages  and  to  hinder  them  in 
their  trade  as  much  as  possible.  They  bring  products 
which  may  be  very  useful,  but  they  carry  away  money. 
Others  leave  money  but  carry  away  merchandise  and  they 
are  also  looked  at  askance.  Contradictory  but  very 
forceful  ideas;  germs  of  theories  on  the  nature  of  wealth 
which  develop  constitute  sciences,  but  which  have  been 
very  efficacious  even  in  very  rudimentary  forms.  It  is 
by  a  sort  of  economic  logic  that  in  the  Middle  Ages  many 
lords  were  willing  to  forego  numerous  pecuniary  rights 
which  would  have  filled  their  chests,  in  order  to  attract 
to  themselves  merchants  and  husbandmen,  thereby 
greatly  enhancing  the  value  of  their  land. 

Economic  psychology  and  economic  logic  are  two 
forces  of  a  different  nature  which  may  under  certain  cir- 
cumstances act  in  opposite  directions.  One  is  made  up 


538  LIFE  AND   LAW  [CH.XV 

of  natural  and  general  phenomena,  often  unpremeditated, 
almost  unconscious;  the  other  is  scientific  or  pseudo- 
scientific  intellectual  labor,  the  result  of  more  or  less  well 
formed  observations,  and  of  more  or  less  well-conducted 
reflections.  Likewise,  it  is  not  seldom  that  the  theorist 
fails  to  understand  exactly  the  mentality  of  the  economic 
man  and  thwarts  his  tendencies.  In  his  turn,  the  economic 
man  often  seeks  to  enslave  logic  by  inventing  theories 
with  the  sole  aim  of  satisfying  personal  interests  or  the 
interests  of  a  group.  The  doctrines  of  protection  and 
free-trade  and  their  constant  struggle  in  the  politics  of 
all  countries  are  explained  much  more  by  pecuniary  than 
by  scholastic  rivalry.  This  accidental  subjection  does 
not  prevent  economic  logic  from  pursuing  its  individual 
career  and  from  making  a  large  personal  contribution  to 
every  legal  system. 

Ill:  Intellectual  Adaptation  of  Man  to  the  Nature  of 
Things. 

(1)  Nature  of  Things  and  Economic  Aims.  Men  who 
desire  certain  things  to  gratify  their  desire  of  pleasure  or 
of  power  are,  through  that  very  desire,  obliged  to  conform 
to  the  nature  of  these  things  in  order  to  make  them  prosper. 
They  have  to  water  plants  which  might  not  be  able  to 
endure  drought,  prepare  the  ground  for  seed,  plant  seed, 
graft  vines  and  fruit  trees,  choose,  care  for  and  breed  the 
live-stock  which  can  live  upon  their  lands,  and  so  on. 
To  do  this,  it  is  necessary  to  study  the  nature  of  these 
various  things.  It  is  sometimes  necessary  for  the  au- 
thority in  power,  whatever  it  be,  to  make  laws  and  regu- 
lations to  compel  individuals  to  take  into  consideration 
to  a  certain  extent  the  physical  properties  of  material 
objects,  and  the  physiological  properties  of  living  creatures, 
that  are  objects  of  wealth. 

This  knowledge  of  the  nature  of  things,  be  it  under- 
stood, is  extremely  variable.  Accordingly,  laws  are 
adapted  to  it  more  or  less  successfully.  In  order  to  be 


§3]  THE  ECONOMIC  FACTOR  539 

able  to  discover  a  satisfactory  solution^in  every  instance, 
the  legislator  would  have  to  know  all  technics  thoroughly, 
which  is  an  evident  impossibility.  Besides,  as  every 
technic  is  constantly  progressing,  the  truth  of  today  may 
not  be  that  of  tomorrow,  and  some  regulation  or  legislative 
measure  which  is  in  perfect  conformity  with  the  truth 
today  might  be  rendered  harmful  and  tyrannical  by  fresh 
progress  of  science. 

This  adaptation  of  laws  to  the  nature  of  things  is  there- 
fore always  imperfect.  This  is  manifested  in  all  civiliza- 
tions by  more  or  less  violent  actions  and  reactions.  There 
are  proved  to  be  periods  of  intervention  when  the  law, 
custom  or  regulations  try  to  influence  the  individual 
with  a  view  to  assuring  the  maximum  of  prosperity  to 
the  whole,  and  periods  when  the  individual  rids  himself 
of  all  his  shackles  and  announces  that  he  is  in  the  best 
position  to  know  how  he  should  strengthen  the  various 
elements  of  his  patrimony. 

In  this  expression  nature  of  things,  of  what  nature  do 
we  mean  to  speak  ? 

1.  Nature.  —  It  is  a  question  of  the  physical  nature  of 
inanimate  things,  of  the  physiological  nature  of  animate 
beings,  and  of  the  psychological  nature  of  certain  animate 
beings.     The  psychological  characteristics  of  the  higher 
animals  play  a  part  in  their  breeding  and  in  the  nature 
of  the  work  that  may  be  required  of  them.     While  ad- 
mitting that  he  no  longer  does  so,  especially  must  it  not 
be  forgotten  that  man  has  played  the  part  of  a  thing.     The 
degree  of  intelligence  of  the  slaves  of  any  particular  race 
affected  their  value  and  their  situation  to  a  considerable 
extent. 

2.  Things.  —  The  question  here  is  more  particularly  of 
material  things  which  can  secure  benefit  to  man.     It  is 
proper,  however,  to  make  a  twofold  observation. 

(a)  Man  has  had  to  learn  to  understand  not  only  the 
things  he  likes  in  order  to  make  them  prosper,  but  things 


540  LIFE  AND   LAW  [Cn.XV 

that  are  obstructive  and  injurious,  in  order  to  overcome 
or  suppress  them.  Obstructive  things,  those  which 
threaten  to  deprive  him  of  the  benefits  he  expects,  such  as 
diseases  of  plants  and  of  livestock,  or  noxious  weeds 
which  choke  the  seed ;  injurious  things,  those  which  attack 
his  person  directly  and  can  destroy  him,  such  as  human 
enemies,  ferocious  beasts,  venomous  reptiles,  or  sickness. 

(b)  There  are  immaterial  entities  which  impose  them- 
selves not  only  upon  reasoning  humanity  but  upon  active 
and  practical  humanity;  such  are  time  and  space.  It  is 
very  necessary  to  treat  them  as  positive  things,  whatever 
may  be  their  philosophical  nature.  Although  it  is  cus- 
tomary to  consider  these  two  ideas  as  related,  they  are 
not  perhaps,  from  the  economic  point  of  view,  of  the 
same  nature. 

Space  or  economic  distance  may  be  regarded  strictly  as 
a  material  thing,  for  it  is  made  up  of  the  agglomeration 
of  a  certain  number  of  physical  bodies  between  two  de- 
termined points.  It  is  a  certain  mass  of  air,  water  and 
land  which  has  to  be  traversed  in  order  to  go  from  one 
town  to  another,  and  the  nature  of  the  bodies  to  be  found 
in  this  mass  is  of  the  greatest  importance  to  transporta- 
tion. Means  of  communication  are  established  according 
to  purely  physical  considerations. 

Time  may  be  measured  materially  by  the  displacement 
of  bodies ;  but  it  is  in  itself  absolutely  immaterial.  It  flows 
just  the  same  for  him  who  measures  and  for  him  who  does 
not  measure  it.  This  is  a  considerable  difference,  for  man 
has  more  hold  on  space  than  he  has  on  time.  Time  and 
space  are  obstacles  to  man.  The  good  things  he  covets 
are  not  within  arm's  reach.  He  must  tire  himself  by 
going  to  get  them  or  pay  to  have  them  brought  to  him. 
Time  is  an  obstacle.  He  who  has  sown  his  field  has  to 
wait  for  the  harvest  and  if  he  has  nothing  to  live  off 
until  the  next  crop,  he  will  not  have  any  benefit  from  his 
labor. 


§3]  THE  ECONOMIC  FACTOR  541 

But  time  and  space  are  blessings  to  man,  the  most 
precious  blessings.  For  what  use  would  the  accumulation 
of  wealth  be  to  one  who  would  have  but  a  few  moments 
in  which  to  spend  it  ?  The  time  which  slips  away  between 
birth  and  death,  —  this  is  life ;  and  these  years  accorded 
to  each  individual,  are  they  not  the  most  precious  thing 
which  he  possesses?  The  benefits  he  has  been  able  to 
enjoy  are  secondary;  the  documents  entered  to  his  credit 
count  very  little  to  him  who  has  not  the  time  to  utilize 
their  value.  Such  reflections  will  seem  rather  trite  to 
those  who  are  ignorant  of  the  fact  that  economists  and 
even  jurists  always  think  of  time  as  an  obstacle  and 
seldom  of  time  as  a  value. 

Space  is  also  a  form  of  wealth  or  at  least  a  condition 
of  all  wealth.  Landed  property  is  valued  by  its  physical 
nature  but  likewise  by  the  space  it  occupies.  Space 
makes  it  possible  for  man  to  enjoy  great  freedom  of  move- 
ments, to  be  able  to  be  transported  from  one  country  to 
another.  To  travel  in  distant  countries  is  a  pleasure  and 
therefore  a  form  of  wealth,  a  thing  to  be  bought  as  any 
other  good. 

(2)  Nature  of  Things  and  Juridical  Aims.  The  legis- 
lator also  observes  the  nature  of  things  in  order  to  realize 
juridical  aims.  It  is  then  no  longer  a  question  of  augment- 
ing the  elements  of  wealth.  But  since  he  has  to  assure 
certain  juridical  aims  —  security  of  transactions,  preserva- 
tion of  the  family  patrimony,  protection  of  the  married 
woman  or  the  minor,  transmission  of  property,  the  guar- 
antee of  good  faith  in  bargains  —  he  is  obliged  in  order  to 
succeed,  to  comply  with  the  nature  of  things.  A  great 
many  of  the  distinctions  that  different  legislations  make 
between  personal  property  and  real  property  spring  from 
the  fact  that  the  first  is  easily  transportable  and  the  sec- 
ond is  not.  The  legislator  also  often  distinguishes  be- 
tween fungible  and  non-fungible  things,  things  which  are 
consumed  in  the  first  use,  and  so  on.  He  likewise  takes 


542  LIFE  AND  LAW  [Cn.XV 

notice  of  time  and  space,  in  juridical  organization.  Thus 
in  order  to  provide  for  the  proper  conduct  of  law-suits, 
he  fixes  periods  which  vary  according  to  the  distances 
involved,  and  so  on. 

IV:  Influence  of  Material  Things  upon  Human  Psy- 
chology. The  celebrated  expression  ' '  historic  materialism ' ' 
might  be  extended  to  this  whole  class.  Inversely  with 
the  preceding  factors  by  which  man  acts  upon  matter,  in 
this  great  category  of  economic  factors,  matter  acts  upon 
man.  It  constrains  him,  to  a  degree  difficult  to  calculate, 
to  follow  some  specific  line  of  conduct,  to  modify  in  some 
way  his  moral  and  aesthetic  values  and  his  institutions. 
The  famous  school  of  historical  materialism  seized  upon 
a  very  small  branch  in  this  immense  group,  without  sus- 
pecting, moreover,  that  this  immense  group  is  only  a  very 
small  thing,  a  very  small  brook  in  the  immense  river  of 
historical  life.  It  is  none  the  less  true  that  the  very  small 
historical  force  and  the  tremendous  attention  that  has 
been  attached  to  it  both  entirely  deserve  the  recognition 
of  historians,  since  they  have  drawn  attention  to  the 
economic  factor  in  general,  hitherto  misunderstood  or  put 
to  wrong  use. 

(1)  Geographical  Environment.  The  influence  of  the 
geographical  environment  upon  human  customs  and  in- 
stitutions has  been  noted  for  many  years.  The  climate, 
altitude,  proximity  to  the  sea,  and  fertility  of  the  soil 
undoubtedly  influence  the  character  of  human  beings  as 
well  as  that  of  animals.  It  is  often  very  amusing  to  make 
or  to  hear  others  make  a  series  of  simple  and  ingenious 
comparisons  between  the  psychology  of  a  race  and  the 
physical  description  of  the  country  it  inhabits  or  has 
traversed  in  the  course  of  its  history.  Many  works  have 
been  composed  in  this  way  which  are  very  pleasant 
to  read  but  which  furnish  results  that  are  rather  vague 
scientifically.  It  is  very  seldom  that  the  author  who 
indulges  in  this  kind  of  literature  does  not  allow  himself 


§3]  THE  ECONOMIC  FACTOR  543 

to  be  led  on  by  his  imagination  and  mingle  the  probable 
and  improbable.  That  a  country  that  is  very  poor  and 
mountainous  predisposes  its  inhabitants  to  a  life  of  rapine 
to  the  prejudice  of  richer  neighbors,  this  appears  —  even 
"a  priori"  —entirely  natural.  On  the  other  hand,  one 
would  be  very  sceptical  of  an  assertion  such  as :  the  spirit 
of  classification  among  the  Brahmins  comes  to  them  from 
the  regular  form  of  the  peninsula  of  India.  Between  the 
two,  the  degree  of  probability  of  any  specific  comparison 
may  vary  "ad  infinitum." 

The  degree  of  pressure  that  environment  exercises  upon 
human  character  is  far  from  being  always  the  same. 
Some  circumstances  of  a  geographical  nature  may  weigh 
heavily  upon  the  individual  and  allow  him  no  freedom  of 
choice.  Thus  as  regards  climate,  a  very  cold  or  a  very 
warm  climate  may  impede  all  civilization  or  necessitate  a 
particular  kind  of  life.  But  in  a  temperate  climate  and 
one  of  average  fertility,  man  becomes  much  more  inde- 
pendent of  physical  forces,  and  very  diverse  civilizations 
will  be  able  to  develop  under  th  inefluence  of  very  different 
factors. 

In  the  calculation  of  the  geographical  factor,  the  fol- 
lowing must  still  be  taken  into  account : 

(a)  The  state  of  civilization  of  the  people  subjected 
to  it. 

(b)  The  environment  under  which  this  people  lived 
previously. 

(c)  The  character  and  institutions  of  peoples  living  in 
analogous  environments. 

These  various  points  of  view  have,  it  is  true,  sometimes 
been  taken  by  writers;  but,  it  seems  to  me,  without  any 
too  much  method  or  consecutiveness. 

(2)  Demographic  Environment.  The  density  of  the 
population  exercises  a  tremendous  influence  upon  institu- 
tions. Those  which  are  put  in  practice  by  a  people  few 
in  number  become  absolutely  impracticable  when  the 


544  LIFE  AND  LAW  [Cn.XV 

population  increases.  Large  and  small  towns  may  be 
subjected  to  the  same  texts,  and  have  the  same  codes. 
In  reality,  the  law  and  the  customs  will  never  be  identi- 
cal. This  demographic  factor  has  been  much  more  neg- 
lected than  the  preceding  one.  Henri  F.  Secretan,  in 
his  "La  Population  et  les  Mceurs"  is  one  of  the  authors 
who  have  been  specially  preoccupied  with  this  question. 

(3)  So-called  Economic  or  Instrumental  Environment.  By 
a  rather  singular  phenomenon  and  one  that  is  extremely 
important  in  history,  inventions  produced  by  the  human 
brain  pass  rapidly  from  the  passive  rdle  of  created  objects 
to  the  active  role  of  creating  beings.  And  what  they  cre- 
ate is  man  himself.  Man  who  fashions  a  tool,  at  the  very 
same  instant  in  which  he  becomes  master  of  this  tool,  be- 
comes also  its  slave.  He  has  to  adapt  his  muscular  and 
his  intellectual  efforts  as  well  as  his  mode  of  life  to  the 
nature  of  this  tool.  But  still  more,  his  family  life,  his 
social  organization,  his  sentiments,  his  thought,  and  his 
social  or  religious  ideals  will  be  more  or  less  profoundly 
influenced  by  the  creation  of  every  new  instrument  which 
seems  made  solely  to  give  him  more  power  and  to  render 
his  toil  easier  or  his  life  more  pleasant.  So  that  the  "  mens 
agitat  molem"  has  its  counterpart,  and  man  is  obliged  to 
live,  love  and  think  with  a  view  to  the  best  utilization  of 
his  instruments  of  labor.  Such  is,  to  my  mind,  the  essen- 
tial fact  established  by  the  materialistic  theory  of  history. 

What  are  the  inventions  which  may  exercise  a  tyran- 
nical power  over  humanity?  All  or  nearly  all  to  varying 
degrees,  (a)  In  the  foremost  rank  may  be  placed  all  in- 
ventions affecting  the  art  of  war.  Every  military  inven- 
tion of  any  importance  necessarily  entails  an  upheaval  of 
social  conditions,  internal  as  well  as  external.  It  is  not 
necessary  for  them  to  be  extraordinary  inventions  like 
that  of  gunpowder.  Simple  changes  in  tactics,  the  com- 
position of  the  army,  or  longer,  more  patient  and  more 
Systematic  military  training  may  assure  the  triumph  of  a 


§3]  THE  ECONOMIC  FACTOR  545 

people  and  a  political  organization.  The  tactics  of  the 
first  Germanic  invasions,  as  well  as  of  the  later  ones 
of  the  Saracens  and  of  the  Normans,  the  feudal  army, 
the  compact  cavalry  ranks,  and  the  construction  of 
fortified  castles,  constitute  the  various  stages  which 
resulted  in  the  feudal  system.  The  employment  of  even 
very  rudimentary  artillery  could  not  but  effect  its  disap- 
pearance, (b)  Progress  in  the  matter  of  instruments  of 
production  comes  entirely  in  the  second  rank.  For  there 
is  no  possibility  of  production  without  security.  Besides, 
the  famous  mills  of  Karl  Marx  and  his  schools  —  hand- 
mills,  water-mills,  and  steam-mills  —  even  taken  symbol- 
ically, entail  but  very  slight  changes  in  history  compared 
to  those  effected  by  military  inventions,  (c)  Progress  in 
means  of  transportation  has  transformed  human  intel- 
lectuality. It  has  not  acted,  as  was  for  a  long  time  be- 
lieved, in  the  direction  of  the  diffusion  of  ideas,  of  the 
mutual  understanding  and  general  unification  of  the 
human  mentality  —  far  from  it.  It  has  created  new 
methods  of  grouping  according  to  the  way  the  systems  of 
transportation  have  been  planted,  in  certain  countries  de- 
stroying the  life  of  the  coast  or  outer  regions  to  the  ad- 
vantage of  the  central  regions,  elsewhere  acting  quite  the 
reverse,  (d)  Instruments  of  distraction.  The  printing 
press  —  the  hand-press,  the  motor-press,  the  rotary- 
press  —  are  just  so  many  instruments  which  bear  down  on 
human  thought  with  an  insinuating  but  heavy  tyranny. 
Periodicals,  newspapers,  great  newspapers  which  issue 
millions  of  copies,  rob  the  greater  part  of  humanity  of 
nearly  all  the  time  which  is  left  it  for  reflection,  outside 
of  occupational  labor. 

This  is  not  saying  that  our  most  modern  newspapers 
are  harmful.  Perhaps  they  do  more  good  than  harm, 
perhaps  they  do  only  good  and  not  harm.  It  matters 
little  to  us.  We  simply  wish  to  establish  the  fact  of  the 
purely  instrumental  nature  of  the  moral  power  of  the 


546  LIFE  AND   LAW  [Cn.XV 

press.  In  the  service  of  the  good  or  the  evil  cause,  the 
rotary-press  will  give  exactly  the  same  product.  It  is 
enough  to  have  at  one's  disposal  a  certain  number  of 
these  machines,  and  a  certain  sum  of  money  in  order  to 
set  them  in  motion,  and  one  can  introduce  into  the  intel- 
ligence of  the  masses  anything  one  wishes,  for  the  masses 
have  just  the  time  necessary  to  adopt  certain  opinions, 
but  not  enough  time  to  reflect  and  criticize. 

The  earliest  printers  wished  to  place  at  the  service  of 
thought  an  instrument* of  diffusion  which  could  render  it 
accessible  to  every  intelligence ;  they  wished  to  com- 
municate to  all  the  great  masterpieces  of  human  genius. 
Theirs  was  a  great  mission;  and  with  great  labor  and 
small  gain  they  were  able  to  fulfill  it.  They  scarcely  sus- 
pected that  by  the  nature  of  things  the  instrument  which 
they  created  would  become  stronger  than  thought, 
that  their  work  of  intellectual  liberation  could  become 
transformed  into  work  of  intellectual  enslavement,  and 
that  some  centuries  after  their  death,  any  illiterate 
creature,  provided  he  were  rich  enough,  would  be  a  thou- 
sand times  more  capable  of  influencing  the  human  men- 
tality than  the  Bible,  Homer,  Plato,  Aristotle  and  all  the 
classics  combined. 

Every  time  man  tries  to  make  an  effort  to  realize  a 
given  ideal,  he  creates  a  new  instrument;  and  by  the  sin- 
gle fact  that  he  has  created  a  new  instrument,  he  has 
created  a  power  which  not  only  will  not  act  solely  in  the 
direction  of  his  original  idea,  but  will  impose  upon  him  a 
new  ideal.  Matter  created  by  man  is  stronger  than  man, 
because  it  transforms  man. 

§  4.  Theory  and  Practice.  In  a  well  established  sci- 
ence, there  could  be  no  contrast  —  still  less  contradic- 
tion —  between  theory  and  practice.  For  practice  is  noth- 
ing else  than  the  application  of  theory  to  real  life.  There 
is  a  possibility  that  this  application  will  present  numer- 
ous difficulties  and,  for  various  reasons,  will  not  be  car- 


§4]  THEORY  AND  PRACTICE  547 

ried  out  with  rigorous  exactitude ;  but  the  application  will 
be  all  the  more  perfect  the  nearer  it  is  related  to  the  theo- 
ory.  If,  on  the  contrary,  there  is  absolute  disagreement 
between  the  two,  it  follows  necessarily  that  one  or  the 
other  is  totally  defective. 

In  the  juridical  discipline,  this  is  not  at  all  the  case.  For 
what  is  called  practice  is  quite  another  thing  from  the 
application  of  theory  to  real  life.  It  is,  on  the  contrary, 
the  art  of  borrowing  from  real  life  the  reasons  for  and  the 
means  of  escaping  from  the  rigor  of  principles.  Thus  ju- 
ridical theory  and  juridical  practice,  entities  of  different 
origins,  have  nothing  in  common  but  the  ground  on 
which  they  meet  for  the  purpose  of  combat,  and  they 
may  be  in  opposition  and  in  contradiction  to  one  another. 

Since,  in  juridical  discipline,  practice  is  something  other 
than  the  application  of  theory,  how  can  the  two  be  de- 
fined and  the  relations  between  them  stated  precisely? 
No  solid  definition  has  been  given  by  anyone.  Usage 
remains.  But  just  as  impressions  on  coins  become  indis- 
tinct by  the  influence  of  time,  so  words  have  a  tendency 
rather  to  become  blurred  than  intensified  in  their  original 
significance. 

Above  everything  it  must  be  observed  that  the  qualifi- 
cations "theoretical"  and  "practical"  may  be  applied  to 
certain  juridical  functions,  and  to  certain  juridical  methods ; 
two  points  of  view  that  are  absolutely  independent.  The 
theoretical  function  —  that  of  the  jurisconsult  —  studies 
the  law  in  itself  and  extracts  from  it  general  solutions  aside 
from  any  controversy  between  private  persons.  The 
practical  function  becomes  active  every  time  that  a  suit 
arises  or  whenever  it  is  necessary  to  draw  up  a  contract 
in  order  to  prevent  one.  It  is  represented  by  the  judge, 
the  advocate,  and  the  notary.  But  a  theorist  may  em- 
ploy a  practical  method  by  making  economic  interests 
prevail  in  the  general  interpretation  of  the  law.  Con- 
versely, a  practitioner  may  employ  a  strictly  theoretical 


548  LIFE  AND   LAW  [Cn.XV 

method  and  completely  neglect  practical  considerations. 
These  two  phenomena  are  very  frequent  in  the  course  of 
history.  Also  it  is  proper  to  distinguish  carefully  in  his- 
tory between  the  relations  of  theory  and  practice  in  jurid- 
ical functions  and  the  same  relations  in  juridical  methods. 

I:  Theoretic  Functions  and  Practical  Functions.  Jurid- 
ical theory  is  more  particularly  represented  by  the  law 
school,  and  one  who  teaches  there  all  his  life  may  be  con- 
sidered as  the  type  of  a  theorist.  He  acquires  his  knowl- 
edge of  law  by  study,  reflection  and  criticism  of  the  re- 
flections of  others.  By  the  study  of  cases  and  judicial 
decisions,  he  may  descend  from  the  general  to  the  par- 
ticular; but  he  never  knows  the  case  in  all  its  details,  he 
never  has  a  human  being  explain  himself  to  him  and  re- 
count to  him  with  all  the  particulars  the  circumstances  of 
his  dispute.  He  can  only  know  what  the  judge  has  re- 
tained and  chosen,  —  a  few  fragments  from  a  bulky  record. 
Besides,  he  cares  to  deal  with  the  particular  only  if  he  can 
extract  from  it  a  general  formula. 

The  legislative  function  in  itself  is  outside  of  theory  as 
of  practice,  for  it  consists  of  a  command  and  in  principle 
to  command  is  not  to  reason.  But  nearly  always,  as  a 
matter  of  fact,  the  legislator  is  another  theorist.  The 
orders  he  gives  constitute  general  rules,  and  these  general 
rules  are  the  consequence  of  political  theories. 

The  practical  function  presents  to  us  three  important 
personages:  the  judge,  the  advocate,  and  the  notary. 
Each  influences  in  his  way  the  spirit  of  the  law  of  his 
time.  Whoever  studies  a  given  legal  system  has  above 
everything  else  to  inform  himself  upon  the  role  of  each  of 
these  personages.  It  might  be  supposed  that  by  virtue  of 
his  authority  the  judge  has  the  largest  share  of  influence 
upon  the  evolution  of  law.  This  is  not  always  true.  In 
certain  judiciary  organizations,  there  is  no  counsel  or  he 
plays  only  a  very  unimportant  part.  In  others,  on  the 
contrary,  it  is  he  who  performs  the  real  juridical  work; 


§4]  THEORY  AND  PRACTICE  549 

he  is  often  a  shrewd  psychologist,  who  discerns  the  strength 
and  weakness  of  the  judge  and  knows  how  he  can  be 
taken  in.  The  notary,  especially  in  times  when  writing  is 
not  wide-spread,  can  through  his  process  of  drawing  up 
documents,  introduce  innovations  that  the  judge  will  not 
dare  contest.  Thus  in  the  western  law  of  the  Prankish 
period,  the  role  of  him  who  frames  formulas  is  consider- 
able. It  is  in  feudal  justice  that  the  counsel  in  judicial 
proceedings  first  shows  himself.  He  becomes  very  power- 
ful in  all  courts  of  justice  in  the  thirteenth  and  subse- 
quent centuries. 

The  education  of  the  practitioner  has  considerable  in- 
fluence upon  his  type  of  mind.  There  are  some  civiliza- 
tions where  he  studies  in  no  school  but  acquires  his  train- 
ing by  simple  apprenticeship,  frequenting  court  pleadings 
and  working  under  the  direction  of  an  experienced  practi- 
tioner. In  other  juridical  environments,  he  is  subjected 
to  a  theoretical  training  of  longer  or  shorter  duration; 
sometimes  even  —  as  the  Rabbis  of  the  Talmud  —  he  re- 
mains a  theorist  throughout  his  whole  life  while  exercis- 
ing justice. 

All  these  circumstances  have  an  influence  upon  the 
atmosphere  of  juridical  environment  and  affect  the 
technic. 

II:  Theoretical  Methods  and  Practical  Methods.  (1) 
The  apparent  and  the  concealed  method.  The  method  of 
the  jurist  is  always,  or  at  least  nearly  always,  apparent. 
He  bases  his  solutions  upon  real  arguments  which  justify 
them,  and  he  is  as  proud  of  the  force  of  his  arguments  as 
of  the  neatness  of  his  solutions.  In  rare  instances,  per- 
sonal interests  and  religious  or  political  opinions  may 
make  him  uphold  one  thesis  rather  than  another.  But 
since  he  formulates  general  principles  and  since  in  the 
course  of  a  life-time  roles  may  often  be  reversed,  he  runs 
the  risk  of  seeing  himself  oppose  tomorrow  his  opinion  of 
the  day  before.  This  situation  is  not  exceedingly  rare  in 


550  LIFE  AND  LAW  [CH.XV 

history.  And,  although  rather  disagreeable  for  one  who 
wishes  to  be  taken  seriously,  it  is  not  fatal. 

Quite  different  is  the  situation  of  the  judge,  who  is 
never  obliged  to  state  the  real  motives  of  his  decision.  If 
he  should  make  a  rule  that  he  would  never  decide  be- 
tween contending  parties  except  according  to  the  length 
of  their  noses,  it  would  always  be  easy  for  him  to  render 
judgments  whose  reasonings  were  perfectly  correct  accord- 
ing to  law  and  absolutely  unassailable,  and  no  one  could 
ever  suspect  him  of  the  true  motive  which  caused  his  de- 
cision. So  that  it  has  been  possible  to  term  the  style  of 
judicial  opinions  cryptological,  through  the  fact  that  it 
conceals  the  thought  of  the  judge  instead  of  revealing  it. 
It  is  said  that  the  judgment  is  often  reached  —  some- 
times even  announced  —  before  it  has  assumed  its  final 
form,  and  that  the  flood  of  arguments  and  authorities 
which  would  uphold  it  if  attacked,  were  accordingly  not 
known  by  the  judge  at  the  time  of  his  decision.  As  a 
matter  of  fact  that  may  happen.  The  true  method  of  a 
jurist  is  nearly  always  apparent ;  the  true  method  of  judi- 
cial decision  is  sometimes  apparent,  sometimes  concealed. 

(2)  The  Methods  Explained.  The  two  methods,  theoret- 
ical and  practical,  may  be  used  indifferently  by  theorists 
or  practitioners.  But  in  what  do  the  methods  themselves 
consist?  The  first  employs,  in  the  solution  of  juridical 
difficulties,  abstract  technic,  arguments  from  texts,  from 
analogy  or  construction,  in  a  word  the  whole  of  logic. 
The  practical  method  neglects  texts  which  have  not  fore- 
seen the  exact  difficulty  and  any  course  of  doctrinal  ar- 
gument which  can  solve  it  only  in  an  artificial  manner, 
and  attempts  to  calculate  the  moral  and  economic  advan- 
tages of  every  solution. 

Suppose  it  is  a  suit  between  a  farmer  and  a  merchant 
apropos  of  a  sale.  The  judge  may  shut  himself  up  in  his 
office,  pore  over  texts,  compare  them,  and  seek  what  so- 
lution is  most  in  accord  with  the  general  principles  of 


84  J  THEORY  AND  PRACTICE  551 

sale;  in  this  case  he  will  use  the  theoretic  method.  If, 
on  the  other  hand,  he  analyzes  and  weighs  the  interests  of 
agriculture  and  commerce,  and  if  he  wishes  to  favor  in  his 
judgment  farmers  or  merchants,  he  will  have  employed  a 
practical  method. 

The  two  methods  may  give  identical  results  in  a  par- 
ticular case  and  be  in  absolute  contradiction  in  another 
case.  Besides  it  is  not  often  that  a  single  theoretical  so- 
lution is  opposed  to  a  single  practical  solution.  Thus  in 
our  hypothesis,  our  farmer  will  advance  a  textual  argu- 
ment and  the  interests  of  agriculture,  our  merchant  an 
argument  from  analogy  or  construction,  and  the  interests 
of  commerce,  so  that  nearly  always  theory  conflicts  with 
theory  and  practice  with  practice  as  well  as  practice  with 
theory. 

(3)  Fact  and  Law.  In  a  given  suit,  what  are  the  ques- 
tions of  law  and  what  the  questions  of  fact?  Between 
these  two  ideas  is  there  no  logical  contrast,  as  there  is 
between  the  general  and  the  particular,  the  essential  and 
the  accidental,  the  concrete  and  the  abstract? 

The  question  of  law  is  that  which  has  already  been  de- 
cided by  the  legislator;  the  question  of  fact  is  that  which 
the  legislator  has  not  believed  it  opportune  to  regulate 
and  leaves  to  the  free  evaluation  of  the  judge.  There  is 
no  difference  in  nature. 

Suppose  a  horse  that  has  been  bought  develops  a  cer- 
tain disease  after  a  certain  interval  of  time.  The  pur- 
chaser claims  not  to  have  seen  the  defect  at  the  time  of 
the  sale.  He  asks  the  judge  to  have  his  money  returned, 
he  being  ready  to  return  the  animal. 

1.  First  hypothesis.  Suppose  there  has  been  an  original 
rule  of  law  which  contains  but  a  single  mention  of  the 
subject  worded  thus:  "If  the  judge  considers  a  sale  dis- 
honest, he  can  pronounce  it  void."  In  such  a  case,  the 
question  of  law  resolves  itself  into  practically  nothing, 
whereas  a  multitude  of  questions  of  fact  can  be  raised. 


552  LIFE  AND  LAW  [  CH.  XV 

2.  Second  hypothesis.    The  code  of  the  country  is  a 
little  more  explicit  and  says,  for  example:   "The  vendor 
is  bound  by  an  implied  warranty  against  defects  con- 
cealed in  the  thing  sold  which  render  it  unfit  for  the  use 
to  which  it  is  destined."    The  proportion  of  law  has  con- 
siderably increased,  the  proportion  of  fact  sensibly  dimin- 
ished, although  remaining  always  very  important.     The 
judge  will  always  have  to  decide  whether  the  disease  in 
question  is  a  hidden  defect,  whether  it  renders  the  horse 
unfit  for  a  particular  use,  what  is  the  use  for  which  the 
horse  was  destined,  and  so  on. 

3.  Third  hypothesis.     The  legislator  has  drawn  up  a 
specific  table  of  the  diseases  for  which  the  sale  must  be 
annulled.    The  judge  sees  his  power  reduced,  he  no  longer 
has  anything  to. do  but  to  determine  the  fact  that  the  dis- 
ease existed  at  the  time  of  the  sale  —  question  of  fact  — 
and  that  it  is  embraced  in  the  nomenclature  of  the  legis- 
lator —  question  of  law. 

4.  Fourth  hypothesis.    The  legislator  might  go  farther 
still.    The  existence  of  the  disease  at  the  time  of  the  sale 
might  be  fixed  by  legal  presumptions  —  the  fact  pre- 
sumed after  a  certain  date.     Or  even,  for  the  fact,  the 
judge  might  be  obliged  to  refer  to  an  expert,  to  the  testi- 
mony of  two  witnesses,  or  to  the  word  of  one  of  the  par- 
ties.    In  this  last  hypothesis,  the  law  will  have  almost 
completely  absorbed  the  fact. 

In  our  days,  it  would  be  unusual  to  see  the  judiciary 
power  so  completely  bound.  In  a  great  many  ancient 
systems,  the  judge  may  sometimes  choose  the  method 
of  proof  but  has  not  the  power  to  appraise  it.  If  a  cer- 
tain number  of  fellow  jurors  or  witnesses  come  to  take 
an  oath  or  make  a  deposition  before  him  in  the  prescribed 
form,  he  is  bound  to  believe  them  whatever  may  be  his 
private  conviction. 

A  precise  distinction  between  the  fact  and  the  law  can 
be  made  with  the  maximum  of  precision  only  when  the 


§4]  THEORY  AND  PRACTICE  553 

judiciary  and  legislative  functions  are  distinctly  sepa- 
rate. When  there  is  a  confusion  of  the  two  powers,  the 
line  of  demarcation  is  more  difficult  to  trace. 

(4)  The  Ideal  of  Justice  in  Theory  and  in  Practice.  The 
idea  of  the  just  is  a  theoretical  idea.  Its  basis  is  un- 
doubtedly metaphysical,  for  it  is  through  metaphysical 
conception  that  we  attribute  to  the  "  suum  cuique  "  an  ideal 
character.  But  the  value  of  the  just  once  admitted,  pure 
logic  permits  of  the  development  of  its  characteristics, 
and  of  its  application  to  any  hypothesis  whatsoever. 
Like  every  problem  of  pure  logic,  problems  of  justice  may 
be  more  or  less  complex  and  consequently  more  or  less 
difficult  to  solve.  Actual,  concrete  life  will  state  a  series 
of  these  problems,  and  it  will  be  necessary  to  study  it  in 
order  to  gather  their  data.  But  the  necessary  data  once 
known,  a  purely  intellectual  operation  will  furnish  the 
solution. 

The  "suum  cuique"  is  only  one  factor  of  law  in  the 
midst  of  many  others.  No  legal  system  ignores  it,  but 
none  applies  it  constantly.  Its  introduction  into  law 
may  be  effected  at  various  moments: 

(a)  At  the  moment  the  law  is  made.     The  legislator 
may  ask  himself  if  the  orders  that  he  gives  conform  to 
equity.    He  thus  performs  an  act  of  justice  by  protecting 
the   patrimony   of  minors,    of  married   women   and   of 
lunatics,  by  assuring  equal  rights  of  succession  to  all  the 
children,  and  so  on. 

(b)  Equity  may  also  be  considered  at  the  time  con- 
tracts are  made.     Contracts  are  laws  which  individuals 
impose    upon    themselves.       Made    fairly,     they    may 
introduce   into    the    private   life   of   each   more   justice 
than    the    legislator    could.      Thus    the    legislator    may 
have  outlined  a  type  of  matrimonial  relationship,    just 
in  the  majority  of  cases,  if  the  fortunes  of  the  couple 
are   equal    or   in    a   certain    proportion;    but   unjust    if 
there  is  too  great  an  inequality.    The  marriage  contract 


554  LIFE  AND   LAW  [Cn.XV 

will  allow  greater  equity  to  be  obtained  in  each  particu- 
lar case. 

(c)  Finally,  justice  may  be  taken  into  consideration  at 
the  time  when  the  interests  first  conflict.  A  contract, 
even  a  fair  one,  may  end  in  circumstances  which  result 
wrongly.  Even  a  law  drawn  up  with  the  utmost  scrupu- 
lousness and  desire  of  justice  may  likewise  in  certain  in- 
stances sanction  wrongs.  Will  the  judge  or  will  he  not 
be  able  to  correct  the  law  and  the  contract  ?  If  not,  there 
will  be  justice  at  the  beginning  of  the  juridical  relation, 
but  it  will  no  longer  be  found  at  the  end.  If  the  judge 
can  correct  the  law,  the  converse  will  be  true.  The  two 
conceptions  have  their  advantages  and  disadvantages; 
accordingly  we  see  legal  systems  where  one  or  the  other 
predominates.  The  justice  of  the  law  is  schematic, 
general,  theoretic;  justice  left  entirely  to  the  judge's 
evaluation  can  better  follow  the  contours  of  life  and  give 
more  entirely  exact  individual  results;  that  is,  if  we  admit 
the  possibility  of  its  being  absolutely  impartial. 

(5)  Double  conflict  of  theory  and  practice.  When  one 
assails  theoretic  work  in  law,  a  double  reproach  is  made 
against  it : 

(a)  "That  it  neglects  reasons  of  practical  utility,  and 
sacrifices  the  substance  to  the  form,  and  the  prosperity  of 
individuals  and  of  the  nation,  in  order  to  obey  the  dead 
letter  of  an  old  text.  For  a  theorist,  men  are  made  for 
the  law,  not  the  law  for  men.  Before  making  laws  upon 
the  economic,  the  industrial,  and  the  commercial  life  of 
men,  it  should  be  necessary  to  be  acquainted  with  this 
life,  and  very  often  the  one  who  frames  the  law  is  not 
acquainted  with  it.  He  is  ignorant  of  the  needs  of  his 
times  and  applies  to  them  obsolete  rules."  And  so  on. 
To  sum  up,  theorists  and  practitioners  have  an  old  bat- 
tle-ground, —  the  respective  importance  of  juridical  and 
economic  factors  in  the  framing  and  the  interpretation  of 
the  law.  It  must  be  remarked  that  the  principles  of  jus- 


§4]  THEORY  AND  PRACTICE  555 

tice  are  classed  sometimes  in  one  group,  sometimes  in 
another.  For  true  business-men  and  certain  moralists 
justice  is  nothing  but  theory  and  they  disdain  it  com- 
pletely; more  sentimental  reformers  make  a  certain  place 
for  it  in  practice. 

(b)  "The  theorist  solves  in  advance  a  multitude  of 
questions  which  it  would  be  much  better  to  solve  at  the 
moment  they  present  themselves  in  reality.  It  would  be 
very  much  better  for  the  judge  to  be  untrammeled  by 
any  text,  for  him  even  to  be  ignorant  of  juridical  science. 
A  good  conscience  and  a  little  common-sense  would  be 
sufficient  to  decide  any  suit.  The  more  liberty  the  judge 
has  and  the  freer  he  is  from  juridical  prejudices,  the  bet- 
ter able  he  will  be  to  discover  the  most  useful  and  the 
most  equitable  solution.  True  practical  law  should  not 
be  created  under  a  general  form  before  the  conflicts  arise, 
but  by  special  decisions  at  the  time  they  are  to  be  solved." 

We  do  not  at  all  intend  to  pronounce  upon  these  two 
great  tendencies  of  the  juridical  mind.  Theorists  and 
practitioners  have  had  in  different  civilizations  their  fa- 
vorite spheres  and  their  periods  of  prestige.  They  are 
both  right  to  a  certain  extent. 

Theoretical  systems  are  preferable  from  the  point  of 
view  of  the  social  order  and  security  of  transactions. 
With  them,  one  knows  what  is  to  be  expected,  or  at  least, 
about  what  is  to  be  expected.  Even  were  they  defective, 
principles  that  are  immutable  and  derived  by  a  more  or 
less  rigorous  logic  may  spare  the  individual  many  sur- 
prises. On  the  other  hand,  they  may  be  troublesome  and 
hinder  more  or  less  social  progress.  Practical  systems 
permit  of  greater  perfection  in  juridical  relations  from 
the  point  of  view  of  the  useful  and  the  just.  They  are 
extremely  dangerous  as  regards  the  security  of  business 
transactions  and,  besides,  are  conducive  to  arbitrariness 
on  the  part  of  the  judge. 

These  advantages  and  these  disadvantages,  which  have 


556  LIFE  AND  LAW  [Cn.XV 

been  well  understood  for  a  long  time,  prevent  juridical 
systems  from  becoming  definitively  fixed  in  any  deter- 
mined direction. 

The  extremes  of  a  situation  —  absolute  submission  of 
the  judge  to  a  pre-existing  text  and  his  absolute  inde- 
pendence at  the  time  of  the  suit  —  seldom,  one  may  say 
never,  present  themselves.  In  reality,  the  judge  may, 
by  subtle  interpretations  of  the  text,  or  by  inexact  ap- 
praisements of  the  fact,  always  extricate  himself  from  the 
restraint  of  the  law.  Only,  if  the  prestige  of  the  doctrine 
is  great,  he  will  not  do  it  except  under  particularly  press- 
ing circumstances. 

On  the  other  hand,  habitual  unadulterated  arbitrari- 
ness has  never  existed.  When  the  law  lays  down  no  rule 
for  the  magistrate,  he  is  obliged  to  invent  one  for  himself. 
Even  for  acts  which  depend  upon  his  own  free  will,  every 
functionary  maps  out  for  himself  a  line  of  conduct  which 
he  generally  follows  without  being  obliged  to  do  so.  Ex- 
perience shows  that  in  every  domain  precedents  assume 
for  themselves  the  authority  of  veritable  laws.  If  the 
functionary  keeps  the  motives  of  his  decisions  hidden,  the 
law  exists  none  the  less  for  that,  but  it  is  occult;  if  he  re- 
veals them  —  and  he  will  do  so  sooner  or  later  —  this  is 
equitable  law  coming  to  take  the  place  of  a  missing  civil 
law. 

Ill:  Theory  and  Practice  in  the  History  of  Law.  The 
relative  strength  of  theory  and  practice  at  any  given 
moment  in  the  life  of  positive  law  is  of  great  interest.  It 
is  one  of  the  features  by  which  the  juridical  systems  of 
various  peoples  assert  most  clearly  their  individuality. 
From  this  particular  point  of  view,  no  civilization  is  like 
another  and  although  certain  institutional  evolutions  are 
monotonous  and  commonplace,  this  side  of  juridical  tech- 
nic  appears  in  each  country  under  new  and  original  forms. 

If  one  wishes  to  estimate  the  value  of  the  theoretical  or 
the  practical  character  of  an  environment,  it  is  well  to 


§4]  THEORY  AND  PRACTICE  557 

observe  the  distinctions  we  have  just  made  between  the 
functions  and  the  method,  and  in  the  method,  the  three 
principal  characteristics,  —  of  legality,  of  equity,  and  of 
economic  utility. 

The  regulation  of  urban  servitudes  in  various  legal 
systems  may  furnish  a  suitable  enough  example  for  the 
purpose  of  making  a  comparison  of  the  differences  in 
technic. 

(1)  Urban  servitudes  in  Roman  Law.  It  is  strange  that 
the  Roman  law,  so  deeply  studied  in  so  many  respects, 
still  remains  very  enigmatical  in  certain  elements  of  its 
technic.  It  cannot  be  denied  that  its  general  theory  of 
predial  servitudes  is  essentially  deductive;  the  general 
rule  that  the  servitude  can  exist  only  as  a  burden  on  land 
and  for  the  benefit  of  land  —  of  which  the  rule  "servitus 
in  faciendo  consistere  nequit"  is  one  of  the  aspects  —  can 
be  presented  only  as  the  logical  consequence  of  a  previ- 
ously stated  definition.  We  know  that  practice  cannot 
uphold  it  in  its  entirety.  The  necessity  of  a  "causa  per- 
petua"  which  prevents  the  creation  of  a  right  to  draw 
water  from  a  cistern,  the  indivisibility  which  prevents 
one  of  the  joint  owners  (of  a  piece  of  landed  property) 
from  acquiring  a  right  of  passage  to  his  sole  advantage,  — 
all  of  these  ideas  are  evidently  of  theoretical  inspiration. 

Neither  primitive  formalism,  nor  the  spirit  of  conserva- 
tism, nor  native  nationalism,  nor  the  particularities  of  the 
judiciary  organization  or  procedure,  —  can  in  any  way  ex- 
plain the  general  spirit  which  dominates  the  whole  of 
the  theory  of  Roman  predial  servitudes.  The  influence, 
still  but  slightly  understood,  of  a  philosophical  education 
upon  the  thought  and  the  method  of  the  Roman  juriscon- 
sult alone  can  furnish  a  clear  explanation.  Roman  the- 
ory will  never  be  completely  emancipated  from  the  rules 
that  were  imposed  upon  it  at  his  beginning;  but  the  prac- 
tical sense  never  loses  its  claims  and  corrects  certain  theo- 
retical excesses  of  the  early  time.  Paulus  gives  us  an  ex- 


558  LIFE  AND   LAW  [  CH.  XV 

ample  of  this:  "The  servitude  of  drawing  or  using  water 
except  from  its  source  or  fountain  head  cannot  be  granted ; 
nevertheless  today  it  is  the  custom  for  it  to  be  granted 
from  any  place  whatsoever." 

(2)  Urban  servitudes  in  the  Mussulman  Law.  The  Mus- 
sulman jurisconsults  —  at  least  certain  of  the  most  popu- 
lar among  them  —  have  been  represented  as  the  precur- 
sors of  the  theorists  of  the  "misuse  of  rights."  That  is 
true  up  to  a  certain  point.  In  view  of  the  existence  of 
but  a  single  sacred  text,  which  is  very  incomplete  from  the 
juridical  point  of  view,  but  very  rich  in  precepts  of  mo- 
rality and  equity,  it  is  to  these  precepts  that  they  were 
obliged  by  preference  to  apply  in  order  to  fill  up  the  gaps 
in  the  law.  So,  when  in  many  legal  systems  customary 
traditions  or  the  authority  of  a  sovereign  imposes  special 
and  precise  limitations  upon  the  law  of  property,  the 
Mussulman  jurisconsults  were  obliged  to  work  out  these 
special  limitations  by  the  aid  of  general  principles.  It  is 
not  surprising  that  they  asked  themselves  at  a  very  early 
period,  "May  one  use  his  rights,  not  for  personal  advan- 
tage but  in  order  to  harm  others?"  "May  one  do  any- 
thing he  pleases  in  his  home,  at  the  risk  of  inflicting  un- 
endurable injury  upon  his  neighbor?"  It  is  evident  that 
these  questions  cannot  be  answered  unreservedly  in  the 
affirmative,  and  that  in  order  to  govern  the  relations  be- 
tween neighbors  and  render  town  life  somewhat  endur- 
able, the  exercise  of  urban  property  rights  must  be  regu- 
lated. 

The  Mussulman  jurisconsults  did  not  go  farther  in  the 
limitation  of  property  rights  than  have  other  peoples. 
They  followed  different  directions  and  different  methods. 
Since  the  free  life  of  plains  and  fields  preceded  the 
restricted  life  of  towns,  it  is  evident  that  the  contact  took 
place  among  family  groups  who  were  in  the  habit  of 
doing  in  their  homes  whatever  they  pleased  without  in- 
conveniencing any  one  or  being  inconvenienced  by  any- 


§2]  THEORY  AND  PRACTICE  559 

one.  City  life  brought  up  multiple  neighborhood  con- 
flicts for  which  "each  is  master  of  his  own"  formed  the 
common  law,  and  "provided  the  life  in  common  is  not 
rendered  impossible"  served  to  justify  indispensable  lim- 
itations. 

The  inhabitant  of  a  city  is  in  danger  of  being  deprived 
of  light,  sunshine  and  fresh  air;  he  may  be  deprived  of  the 
intimacy  of  his  family  life  by  the  fact  that  the  neighbors 
can  look  in  upon  him.  What  is  more  unbearable?  For 
the  Mussulman,  the  family  life  is,  without  hesitation, 
everything.  He  will  give  up  air,  light  and  sunshine,  pro- 
vided the  privacy  of  his  home  remains  closed  against  all 
intrusion.  The  Byzantine  of  the  Middle  Ages,  on  the 
contrary,  attaches  importance  to  the  view.  The  view  of 
the  sea  is  especially  sacred  to  him ;  but  the  view  of  moun- 
tains, gardens,  public  buildings,  and  public  paintings  are 
advantages  of  which  no  one  ought  to  have  the  power  to 
deprive  those  who  enjoy  them.  On  the  other  hand,  it  is 
all  the  same  to  him  that  the  neighbors  can  look  into  his 
home.  It  can  only  be  lovers  of  lawsuits  or  odd  beings 
who  could  trouble  themselves  about  it,  and  such  persons 
should  locate  themselves  so  that  they  can  escape  the  eyes 
of  the  public. 

The  solutions  of  Ibn  el  Qasem  and  Harmenopulos  sym- 
bolize perfectly  the  interior  life  and  the  exterior  life  of  a 
home.  They  have  had  a  tremendous  influence  in  archi- 
tecture and  have  created  two  important  types  of  resi- 
dence: interior  construction,  and  exterior  construction. 
The  Mussulman  peoples  have  not  been  the  only  ones  to 
profit  by  the  first  type.  The  splendid  "patios"  so  nu- 
merous in  the  large  cities  of  South  America  are  a  product 
of  it;  the  barred  houses  of  these  cities  have  always  taken 
care  to  assure  the  intimacy  of  every  household.  Thus 
through  the  centuries  the  beneficent  influence  of  the  Mus- 
sulman jurist  has  been  able  to  perpetuate  itself.  But  it 
is  evident  that  it  was  necessary  to  choose  between  the 


560  LIFE  AND  LAW  [Cn.XV 

two  types  of  town  houses,  and  that  juridically  the  sacri- 
fice made  by  the  owners  to  the  exigencies  of  life  in  com- 
mon is  equally  important  in  both  solutions. 

(3)  Urban  servitudes  in  the  law  of  the  Talmud.  The 
Talmudic  rabbis  have  incomparable  school  traditions  and 
methods  of  "academic  teaching.  Their  juridical  education 
is  long  and  difficult;  the  pupil  repeats  his  teacher's  opin- 
ions a  long  time  before  he  dares  to  profess  any  of  his  own. 
The  text  which  has  been  directly  revealed  by  the  Deity 
and  must  be  respected  in  its  smallest  details  is  relatively 
voluminous ;  the  symbolical  interpretation  is  added  to  the 
literal  and  positive  interpretation  of  the  Bible  and  ren- 
ders all  the  more  complex  the  casuistico-exegetical  method 
which  characterizes  this  discipline. 

It  seems  that  the  great  rabbis  wished  to  create  only 
teachers,  and  not  crowds  of  scholars  with  insufficient  in- 
struction. Thus  —  at  least  in  the  classic  periods  —  they 
could  produce  only  very  profound  works.  They  had  not 
the  art,  always  understood  by  the  Romans,  of  summariz- 
ing and  making  slight  treatises  within  the  reach  of  all. 

The  Hebraic  juridical  classifications  are  also  as  incon- 
venient as  the  Roman  are  convenient.  The  Talmud  is  a 
work  where  one  digression  involves  another,  and  however 
pleasant  they  may  be,  the  order  and  the  development  of 
the  ideas  is  none  the  less  disturbed  thereby. 

The  nationalism  which  had  become  more  narrow  through 
defeat  and  persecution  also  prevented  the  Talmudists 
from  rendering  to  humanity  the  great  services  of  which 
they  would  have  been  capable.  The  rabbis  of  the  Tal- 
mud did  not  ignore  practice;  they  were  very  determined 
characters,  and  in  the  complexity  of  their  argumentation 
the  very  positive  grounds  of  certain  rulings  may  be  dis- 
tinguished. And  this  reasoning  may  be  very  elegant  from 
a  juridical  point  of  view. 

Primus  lives  upon  a  ground-floor  of  which  he  is  un- 
doubtedly the  owner.  Above  him,  the  first  floor  belongs 


§4]  THEORY  AND  PRACTICE  561 

to  Secundus.  The  house  has  settled  down  in  such  a  way 
that  the  door  of  the  ground-floor  is  almost  entirely  ob- 
structed and  the  proprietor  has  difficulty  in  going  in  and 
out  of  his  home.  He  goes  to  the  owner  of  the  first  floor 
and  this  dialogue  ensues:  Primus:  "The  house  will  fall 
down  if  we  do  not  have  it  repaired."  Secundus:  "I  am 
getting  along  very  well;  I  do  not  wish  to  go  to  any  ex- 
pense. As  for  you,  if  your  door  is  too  low,  crawl  upon 
your  stomach  to  go  into  your  house  and  crawl  upon  your 
stomach  to  go  out  of  your  house."  Primus:  "I  will  re- 
pair the  whole  house  at  my  expense."  Secundus:  "But 
where  shall  I  live  in  the  meantime?"  Primus:  "I  will 
provide  you  with  lodgings."  Secundus:  "No,  I  do  not 
want  to  be  inconvenienced.  Crawl  on  your  stomach  to 
go  into  your  home  and  crawl  on  your  stomach  to  go 
out  of  your  home."  And  Secundus  is  within  his  right.  A 
very  rigorous  solution.  But  a  "but"  of  a  juridical  nature 
corrects  the  rigor  of  the  juridical  principle.  If  the  prop- 
erty has  sunk  down,  the  first  floor  no  longer  occupies  the 
same  situation  in  space  that  it  formerly  occupied;  it  has 
dropped  into  the  space  which  belonged  to  the  owner  of 
the  ground-floor.  The  recalcitrant  is  no  longer  in  his 
own  home,  he  is  no  longer  the  owner,  he  can  no  longer 
show  himself  unwilling  to  come  to  terms,  and  everything 
is  thus  settled. 

(4)  Other  combinations  of  theory  and  practice.  The  ex- 
amples we  have  just  given  are  mere  examples;  their  aim 
is  to  explain  and  not  to  prove.  We  have  no  intention  of 
pursuing  this  examination  through  all  the  legal  systems 
that  are  accessible  to  us.  We  should  thereby  only  establish 
the  fact  that  the  ways  of  combining  theory  and  practice 
are  manifold.  No  doubt  theory  often  imposes  unjustified 
solutions  and  in  certain  respects  it  may  be  termed  tyran- 
nical. Doctrines  that  are  too  subtle  and  inaccessible  favor 
the  exploitation  of  the  masses  by  a  group  of  scholars,  or 
pretended  scholars.  They  produce  unrest  in  juridical 


562  LIFE  AND  LAW  [Cn.XV 

life.  Doctrines  that  are  sufficiently  clear  and  simple 
bring  security  and  precision  to  the  business  world.  The 
reception  accorded  the  Justinian  compilations  in  the 
course  of  the  Middle  Ages  was  extremely  varied  accord- 
ing to  the  time  and  country.  In  societies  developed 
enough  to  recognize  themselves  in  them,  they  produced 
order  and  justice;  in  those  incapable  of  disengaging  what 
pertained  to  them  from  this  mass  of  texts,  they  were  con- 
sidered pretexts  for  chicanery.  Some  centuries  were  nec- 
essary to  adapt  them  completely  to  the  conditions  of  prac- 
tical life. 

As  regards  servitudes,  it  was  only  in  the  fifteenth 
century  that  Caepolla  wrote  his  famous  work,  a 
model  of  its  kind.  This  great  personage  did  not  disdain 
to  examine  all  the  details  of  domestic  life  and  to  study  in 
detail,  for  example,  the  construction  of  a  sink.  Simply  by 
making  strict  application  of  the  Roman  texts,  he  could 
obtain  thereby  reasonable,  if  not  always  perfect,  solu- 
tions. For  centuries  many  towns  recognized  this  treatise 
as  the  juridical  code  of  principles.  It  is  true  that  cer- 
tain regions  of  local  customary  law,  at  the  same  time,  were 
fashioning  still  more  satisfactory  institutions  for  the  reg- 
ulation of  neighborhood  relations.  Such  is  the  law  of 
"party  right,"  so  advantageous  from  the  practical  point 
of  view  but  rather  poorly  denned  as  to  its  juridical  form. 
The  Civil  French  Code  has  inherited  Roman  law  and 
customary  law  conceptions.  One  of  its  earliest  commenta- 
tors, Pardessus,  knew  and  made  use  of  Caepolla.  His 
"Traite  des  Servitudes,"  however,  does  not  excel  by 
reason  of  practical  considerations.  It  has  lost  —  along  with 
many  others  —  the  "raison  d'etre"  of  articles  678  and  679 
(former  article  202  of  the  Custom  of  Paris)  of  the  said 
Civil  Code  and  gives  a  very  extraordinary  explanation  of 
them.  Is  it  not  a  rather  curious  phenomenon,  that  of 
having  lost  for  a  long  time  the  practical  reason  of  a  rule 
based  solely  upon  considerations  of  practical  utility? 


§4]  THEORY  AND  PRACTICE  563 

(5)  Modern  treatises.  In  our  times,  two  currents  of 
ideas,  both  interesting,  bring  back  into  question  the  rela- 
tion between  theory  and  practice.  The  thesis  "misuse 
of  law"  or  "misuse  of  rights"  in  France,  and  the  thesis 
"free  law"  in  Germany,  without  being  identical,  have  an 
equal  tendency  to  reduce  the  role  of  theory.  We  do  not 
have  to  decide  how  well  grounded  they  are.  Historically, 
they  express  the  perpetual  oscillation  between  the  need 
of  order  and  stability,  and  the  need  of  progress  in  the 
paths  of  the  useful  and  the  equitable. 

\ 

BIBLIOGRAPHY 

FRAZER,  Golden  Bough;  POST,  Anfange  des  Staats-  und  Rechts- 
lebens,  Grundriss  der  ethnologischen  Jurisprudenz;  DARESTE, 
Etudes  d'histoire  du  Droit;  STEINMETZ,  Die  Studien  der  Volken- 
kunde;  SIMMEL,  Soziologie,  Untersuchengen  uber  die  Formen  der 
Vergesellschaftung;  EHRENBERG,  Raubwirtschaft  und  Kraft-Kultur, 
in  Archiv  fur  exakte  Wirtschaftsforschung,  vol.  I,  p.  40. 

Questions  of  an  economic  nature  are  too  general  to  admit  of  a 
special  bibliography.  Upon  historical  materialism,  see,  however, 
Annales  de  I'Institut  Internationale  de  Sociologie  (1900-1901);  FR. 
ADICKES,  Zur  Lehre  von  den  Rechtsquellen,  insbesond.  uber  die 
Vernunft  und  die  Natur  der  Sache  als  Rechtsquellen  (1872);  GN^US 
FLAVIUS  (KANTOROWICZ),  Der  Kampf  um  die  Rechtswissenschaft; 
KANTOROWICZ,  Rechtswissenschaft  und  Soziologie;  ERNST  FUCHS, 
Juristische  Kulturkampf,  pp.  23,  311;  Bozi,  Die  Weltanschauung  der 
Jurisprudenz,  p.  226;  HECK,  Das  Problem  der  Rechtsgewinnung; 
Gesetzes-Auslegung  und  Interessen Jurisprudenz;  EHRLICH,  Freie 
Rechtserfinding  und  freie  Rechtswissenschaft;  Der  praktische 
Rechtsbegriff,  in  the  Festschrift  fur  Zitelmann;  DANZ,  Auslegung 
der  Rechtsgeschafte;  WEHRLI,  Urtheilsfindung. 

DURINGER,  Nietzsche's  Philosophic  vom  Standpunkt  des  mo- 
dernen  Rechts;  WUSTENDORFER,  Zur  Hermeneutik  des  soziolo- 
gischen  Rechtsfindungs-Theorie,  in  Archiv  fur  Rechts-  und  Wirt- 
schaftsphilosophie,  IX  B  (1916);  GILLIS,  Die  Billigkeit  eine 
Grundform  des  freien  Rechts;  JOSSERAND,  De  Tabus  des  droits, 
p.  45;  SALEILLES,  De  1'abus  du  droit;  PORCHEROT,  De  Tabus  du 
droit;  REYNAUD,  L'abus  du  droit;  ROUSSEL,  L'abus  du  droit; 
LEVY  BRUHL,  La  morale  et  la  science  des  moeurs;  GENY,  Works 
cited:  rich  bibliography  upon  these  different  questions. 


BOOK   III 
DETERMINISM 


CHAPTER  I 
DETERMINISM    AND    THE    IDEA    OF    LAW 

§  1.  DETERMINISM  AND  THE  IDEA  OP  A  LAW:  (I)  DETERMIN- 
ISM AND  DETERMINATION;  (II)  THE  IDEA  OF  LAW  IN  THE  UNI- 
VERSE.—§2.  DETERMINISM  AND  THE  IDEA  OF  A  LAW  IN  THE 
FORMATION  OF  THE  LAW:  (I)  RENEWAL  OF  THE  HUMAN  PER- 
SONNEL; (II)  MULTIPLICITY  OF  THE  CREATIVE  FACTOR  IN  LAW; 
(III)  RATIONAL  LAWS  OF  REALIZATION;  (IV)  METAPHORICAL  LAWS 
OR  FORMULAS. 

§  1.  Determinism  and  the  Idea  of  Law.1  The  following 
definition  of  determinism  has  been  given:  "The  doc- 
trine according  to  which  every  phenomenon  is  deter- 
mined by  the  circumstances  in  which  it  is  produced,  so 
that  a  state  of  things  being  given,  the  state  of  things 
which  follows  it  is  a  necessary  result."  (Goblot,  Vo- 
cabulaire  philosophique.) 

Thus  defined,  determinism  is  not  distinguished  from  the 
doctrine  of  causality.  It  does  not  affirm  the  existence  of 
any  repetitions  of  the  same  phenomena  nor  accordingly 
of  any  kind  of  laws.  It  does  not  deny  the  existence  of 
chance  and  only  vaguely  denies  human  freedom.  Neither 
do  deterministic  philosophers  restrict  themselves  to  the 
development  of  this  formula.  They  have  added  to  it 
many  other  affirmations  which  are  not  its  necessary  con- 
sequence. In  order  to  give  an  idea  of  their  doctrines, 
Goblot  was  obliged  to  add  the  following:  .  .  .  "De- 
terminists  speak  only  of  an  immanent  necessity,  which  is 
confused  with  nature.  Determinism  is  nothing  other 
than  the  principle  of  the  universality  of  natural  laws; 

'[In  this  Chapter,  the  word  "law,"  not  capitalized,  represents  the  author's 
word  "loi,"  here  used  by  him  in  the  sense  of  "any  general  rule  of  phenomena," 
not  specifically  juridical  law.  —  ED.] 

567 


568  DETERMINISM  AND  LAW  [CH.  I 

there  is  no  contingency,  no  chance;  or  again,  there  is  in 
nature  no  first  cause  nor  absolute  commencement." 

In  fact,  the  deterministic  spiii.  goes  much  further;  it 
affirms  that  in  all  domains  natural  laws  are  logically  and 
practically  within  the  scope  of  human  knowledge.  It 
even  dares  to  claim  to  understand  some  of  them  already, 
and  formulates  certain  maxims  in  history  which  have 
claims  to  generality  and  even  to  universality. 

Moreover,  like  all  words  possessed  of  prestige,  the  word 
"determinism"  is  encountered  to  a  certain  extent  every- 
where with  various  and  variable  meanings.  To  reduce  it 
to  its  etymological  meaning  would  be  to  fail  to  under- 
stand its  historical  role.  Without  stopping  to  enter  into 
a  discussion  of  simple  terminology,  it  is  perhaps  prefer- 
able to  make  a  rapid  analysis  of  the  principal  ideas  for 
which  it  has  served  as  a  label  but  which  are  far  from  al- 
ways being  in  perfect  accord  with  it. 

These  ideas  may  be  traced  back  to  two  elements:  (a) 
The  affirmation  of  a  general  determination  which  dispels 
certain  ancient  forms  of  human  belief,  (b)  The  attempt 
to  utilize  this  determination  for  the  purpose  of  enlarging 
human  knowledge  through  the  idea  of  law. 

I:  Determinism  and  Determination.  Determinism  in 
its  present-day  form  states  as  its  first  principle  the  strict 
and  universal  necessity  of  all  phenomena  of  the  past,  the 
present,  and  the  future,  which  cannot  be  produced  other- 
wise than  exactly  as  they  have  been  produced,  are  pro- 
duced, or  will  be  produced.  Everything  is  equally  deter- 
mined with  the  same  strictness.  No  determinist  will  con- 
test this  principle.  But  human  psychology  would  get 
along  quite  as  well  with  a  more  fluctuating  determination 
and  one  which  would  allow  necessity  to  play  with  reality 
as  a  cat  with  a  mouse.  She  would  always  end  in  the 
long  run  by  crushing  it  forcibly  in  her  teeth,  but  might 
amuse  herself  by  allowing  it  to  run  to  right  and  left. 
This  popular  conception  of  determinism,  formerly  rather 


§1]  DETERMINISM  AND  LAW  569 

wide-spread,  is  not  perhaps  absolutely  foreign  to  certain 
modern  savants  who,  unconsciously,  do  not  always  attrib- 
ute the  same  degree  of  determination  to  all  phenomena. 

Determination  being  considered  universal  is  as  rigorous 
among  animate  as  among  inanimate  beings.  It  is  evi- 
dently less  easily  grasped  in  the  former  case,  but  if  the 
principle  is  admitted,  it  cannot  be  less  rigorous  there  than 
elsewhere. 

It  is  eternal,  because  there  is  no  reason  for  its  interven- 
tion at  one  moment  and  not  at  another.  Thus  all  the 
phenomena  of  the  past,  the  present,  and  the  future  have 
been  eternally  given  and  would  have  been  eternally  known 
by  an  omniscient  intelligence. 

This  philosophical  explanation  of  the  universe  evidently 
passes  beyond  the  bounds  of  experience  and  plunges  into 
the  metaphysical.  Undoubtedly,  the  multiple  determina- 
tions established  by  experience  have  contributed  much 
toward  spreading  the  belief  in  universal  determination. 
But  thus  generalized,  it  has  need  of  a  new  basis  which  can 
only  be  of  a  logical  and  metaphysical  nature. 

Now,  metaphysically  and  logically,  universal  determi- 
nation may  be  presented  under  three  aspects : 

(a)  Under  a  transcendental  form.    A  supreme  creative 
will  of  the  world  would  have  fixed  destinies  from  all  eter- 
nity.   The  birth  of  every  living  being,  the  details  of  its 
existence,  and  the  course  of  history,  being  manifestations 
of  the  divine  will,  would  have  their  "raison  d'etre"  in  this 
will.     The  concatenation  of  phenomena  would  only  be 
the  appearance  of  universal  necessity.    Such  is  fatalism 
or  religous  determinism. 

(b)  Under  a  pantheistic  or  immanent  form.    It  is  here 
expression  of  nature  and  of  the  destinies  of  the  universe 
merged    with   divinity   itself.     The  world,   self-creative, 
develops  from  within  toward  certain  unknown  directions, 
and  universal  necessity  results  from  the  realization  of 
the  world  just  as  it  must  be  realized.     Here  again,  the 


570  DETERMINISM  AND  LAW  [Cn.I 

succession  of  phenomena  does  not  reveal  to  us  the  true 
reason  for  which  they  were  produced  and  could  not  have 
been  produced  otherwise. 

(c)  Under  a  purely  causal  form.  A  given  state  of 
things  is  explained  completely  and  solely  by  a  former 
state  of  things,  and  must  of  necessity  produce  a  particular 
state  of  things,  subsequently.  Determinism  is  therefore 
simply  the  concatenation  of  causes  and  effects  without 
the  direction  of  any  hidden  or  superior  force.  Universal 
necessity  is  the  sum  total  of  the  phenomena  in  this  suc- 
cession. 

Causal  determinism  alone  can  be  said  to  be  scientific 
determinism,  not  because  it  constitutes  a  scientifically  es- 
tablished philosophical  doctrine,  but  because  it  is  the  hy- 
pothesis necessary  to  the  establishment  of  science.  In  so 
far  as  they  are  theories,  the  three  are  equally  metaphys- 
ical, that  is  to  say,  hypothetical.  For  however  opposed 
they  may  appear,  they  have  mutually  influenced  one  an- 
other to  a  considerable  extent  in  the  course  of  philosophic 
history. 

Scientific  determinism  implies  that  the  concatenation 
of  causes  and  effects  explains  everything  that  is  taking 
place,  that  has  taken  place  or  that  will  take  place  in  this 
world.  Consequently,  it  denies  miracles  and  psycholog- 
ical freedom. 

(1)  Miracles.  A  miracle  is  the  intervention  at  any 
moment  whatsoever  in  the  history  of  the  universe  of  a 
higher  power,  which  modifies  however  slightly  particular 
phenomena  which  should  be  produced  naturally.  It  is, 
therefore,  if  the  expression  is  preferred,  the  participation 
of  the  supernatural  in  existence.  Originally  inclined  to 
explain  everything  by  the  intervention  of  superior  forces, 
man  has  perceived,  in  proportion  and  according  to  his 
scientific  development,  that  the  most  impressive  and  the 
most  extraordinary  phenomena  could  be  traced  back  to 
rather  simple  causes.  By  a  generalization  quite  compre- 


§1]  DETERMINISM  AND  LAW  571 

hensible  but  imperfect  from  the  view-point  of  pure  logic, 
a  great  many  minds  have  long  since  concluded  that  a 
miracle  is  an  impossibility. 

Some  savants  have  even  gone  further  and  tried  to  ex- 
plain everything  not  by  the  concatenation  of  causes  and 
effects  as  they  exist,  but  by  the  causes  as  they  know 
them,  and  have  denied  facts  which  seem  to  them  inex- 
plicable. Thus  the  facts  of  hypnotism  were  for  a  long 
time  formally  disputed  in  the  name  of  a  wrongly  under- 
stood determinism.  Nowadays  nobody  would  any  longer 
commit  such  an  error.  No  one  would  deny  any  fact  be- 
cause it  was  mysterious,  disconcerting  or  incomprehensi- 
ble. It  can  be  doubted  only  in  so  far  as  it  is  not  estab- 
lished with  certainty. 

(2)  Freedom.  For  the  determinist,  the  indeterminate 
intervention  which  could  not  emanate  from  a  superior 
power,  could  also  not  spring  from  the  living  being,  nor 
from  the  living  and  reasonable  being.  The  living  being 
is  caught  in  the  chain  of  causes  and  effects  of  which  it  is 
a  link  like  any  other.  Its  action  depends  upon  the  total- 
ity of  the  springs  and  motives  which  press  upon  it  and 
constrain  it  to  do  what  it  does  and  not  something  else. 

Experience  shows  that  the  higher  animal,  man,  is  on 
the  whole,  of  an  extremely  docile  mentality  and  that, 
except  when  a  Hamlet  is  encountered,  it  is  easier  to  play 
upon  the  human  brain  than  upon  the  flute.  But  that 
proves  no  great  thing;  it  is  perhaps  only  an  illusion.  We 
do  not  know  what  takes  place  in  the  depths  of  the  mind. 
In  the  humblest  docility,  there  may  be  an  element  of 
freedom.  A  revelation  of  the  motives,  the  reasons,  and 
the  cerebral  constitution  of  a  human  being  would  not 
explain  the  act  of  decision,  the  mechanism  of  which  is 
unknown  to  us. 

But  precisely  because  the  mechanism  is  unknown,  the 
will  is  not  an  element  of  positive  psychology.  Since  the 
phenomena  of  thought  are  only  partially  known,  the  idea 


572  DETERMINISM  AND  LAW  [CH.  I 

of  freedom  may  legitimately  represent  this  portion  of  the 
life,  the  individuality,  and  the  subjectivity  which  is  un- 
known to  us  and  which  perforce  intervenes  in  existence 
with  the  same  right  as  the  known  elements. 

Absolute  miracles  and  an  absolute  freedom  would  de- 
stroy universal  determination ;  but  relative  miracles  and  a 
freedom  relative  to  our  state  of  knowledge  do  it  no  vio- 
lence and  are  even  its  logical  consequence. 

II:  The  Idea  of  Law.  Suppose  an  omniscient  intel- 
ligence placed  at  any  moment  whatsoever  in  the  course 
of  time.  Having  before  its  eyes  the  panorama  of  the  uni- 
verse and  being  able  to  compute  all  the  series  of  combi- 
nations of  causes  and  effects,  it  would  see  unrolled  before 
its  eyes  "ad  infinitum"  the  most  detailed  historical 
tableau.  It  would  have  a  knowledge  of  universal  realiza- 
tion. But  the  knowledge  of  universal  realization  pre- 
supposes the  knowledge  of  universal  causality.  Now 
these  two  branches  of  the  infinite  knowledge  which  it  is 
impossible  for  us  to  attain  but  quite  possible  to  imagine 
and  take  as  guide,  do  not  merge  into  one  another. 

Universal  causality  is  the  totality  of  all  the  relations 
that  all  things  and  all  combinations  of  things  can  have 
among  themselves.  Law  is  generally  denned  by  the  ex- 
pression, "A  constant  relation  between  two  things."  But 
all  relations  are  constant  if  the  things  are  identical  and 
placed  in  identical  conditions.  So  that  the  word  "law" 
signifies  simply  "relationship  between  two  or  more  things," 
which  leads  back  purely  and  simply  to  the  idea  of  cause 
and  effect. 

One  cannot  know  the  exact  mechanism  of  the  action  of 
things  upon  one  another.  Their  distance  apart  and  their 
mutual  affinity  are  distinguishable,  however.  At  a  certain 
degree  of  separation,  things  are  in  ignorance  of  one  an- 
other; the  existence  of  the  one  is  not  modified  by  that  of 
the  other.  On  the  other  hand,  certain  things  remain  for- 
eign to  one  another  even  when  close  together,  because 


§1]  DETERMINISM  AND  LAW  573 

there  is  no  affinity  between  them;  while  contact  between 
certain  bodies  quickly  upsets  the  characteristics  of  both. 

The  knowledge  of  all  the  affinities  which  everything 
and  every  combination  of  things  might  have  with  all 
other  things  and  combinations  of  things  if  they  were 
brought  into  contact  with  one  another,  would  be  that  of 
universal  causality.  The  knowledge  of  the  contacts  which 
at  any  given  instant  of  the  universe  could  be  effectively 
produced  would  be  that  of  universal  realization.  The 
name  "laws"  has  been  given  to  the  generalizations  which 
permit  the  human  intelligence  to  attain,  in  a  certain 
measure,  universal  causality  and  universal  realization. 
What  are  their  logical  values? 

(1)  Hypothetical  laws.  Every  hypothetical  law  leads 
back  to  the  form:  "Given  A,  B  is  the  necessary  result." 
A  is  a  complex  idea  and  represents  the  bringing  into 
contact  of  a  and  b.  The  law  is  hypothetical  because  it  in 
nowise  affirms  that  A  will  be  realized  or  even  could  be 
realized.  The  frequency  of  realization  in  nowise  affects 
the  value  of  the  law;  it  affirms  the  constancy  of  the  affin- 
ity between  a  and  b  expressed  by  B.  If  the  establish- 
ment of  this  affinity  is  correct,  its  generality  is  certain 
under  two  conditions  which  may  moreover  be  considered 
as  implied  in  the  formula  itself: 

(a)  In  order  that  B  be  necessarily  produced,  the  phe- 
nomenon A  will  have  to  be  repeated  under  a  form  that  is 
always  absolutely  identical.  Its  elements,  a  and  b,  and 
the  method  by  which  they  are  brought  into  contact,  will 
have  to  be  always  the  same.  If  their  identity  was  not 
absolute,  the  reproduction  of  the  phenomenon  B  could 
not  be  expected.  This  is  why  hypothetical  laws,  true  in 
all  domains,  will  be  more  difficult  to  establish  in  the  do- 
main of  the  moral  and  social  sciences.  For  there  it  is 
very  difficult  to  disengage  ideas  that  are  simple  and  al- 
ways identical  with  themselves,  and  one  runs  the  risk  of 
contenting  oneself  with  a  mere  verbal  identity  instead  of 


574  DETERMINISM  AND  LAW  [Cfc.  I 

an  identity  of  nature.  The  ideas,  "property,"  "mar- 
riage" and  "succession,"  for  instance,  may  correspond  to 
facts  which  bear  little  resemblance  to  one  another.  Ac- 
cordingly, it  will  be  necessary  to  exercise  much  prudence 
and  make  careful  observations  before  defining  what  nec- 
essary relations  may  exist  between  a  phenomenon  of  this 
kind  and  another  juridical  or  an  extra-juridical  phe- 
nomenon. 

(b)  In  order  for  B  to  be  necessarily  produced,  A  has  to 
be  isolated  to  a  certain  extent,  or  to  put  it  differently,  it 
must  not  encounter  any  obstacle.  The  intervention  of 
another  phenomenon  might  paralyze  the  affinity  between 
a  and  b  or  modify  its  force.  Obstacles  may  completely 
annul  the  affinity  and  entirely  prevent  its  effect:  thus 
water  thrown  upon  powder  might  prevent  its  becoming 
ignited ;  or  they  may  become  united  with  the  original  phe- 
nomenon in  such  a  way  that  an  effect  of  combination  will 
be  produced  which  will  more  or  less  cancel  the  regular 
effect. 

Several  factors  intervening  simultaneously  in  the  same 
phenomenon  play  the  part  of  obstacles  to  one  another  and 
consequently  render  it  difficult,  sometimes  even  impossi- 
ble, to  calculate  what  the  effect  will  be. 

Hypothetical  laws  are  infinite  in  number.  For  all 
things  and  all  combinations  of  things  would  be  in  a  cer- 
tain relation  if  they  came  into  contact  with  one  another. 
But  as  many  things  will  never  come  into  contact  with 
one  another,  these  relations  will  not  become  realized  and 
will  always  remain  unknown. 

Hypothetical  laws  are,  therefore,  possibilities  and  not 
realities. 

(2)  Historical  Laws,  or  Simple  Laws  of  Realization.  The 
law  of  realization  may  be  formulated  thus:  "At  a  par- 
ticular moment  A  will  necessarily  be  produced  and  will 
necessarily  be  followed  by  B."  For  an  omniscient  mind, 
there  would  exist  in  all  domains  an  infinite  number  of 


§1]  DETERMINISM  AND  LAW  575 

laws  of  this  nature.  This  is  an  inevitable  consequence  of 
the  principle  of  universal  determination.  In  all  domains 
where  the  human  mind  can  compute  all  the  affinities  be- 
tween things,  and  can  isolate  completely  or  almost  com- 
pletely, formed  zones  of  influence  protected  from  every 
obstacle,  it  is  allowable  to  formulate  laws  of  this  nature. 
Astronomy  is  the  most  perfect  type  of  science  which 
comprises  laws  of  realization. 

There  are,  on  the  other  hand,  other  domains  where  it 
would  be  absolutely  absurd  to  attempt  to  effect  a  calcu- 
lation of  realization,  through  the  fact  that  they  are  open 
to  every  obstacle  of  every  nature.  Thus,  will  a  given  psy- 
chological phenomenon  become  realized  at  a  particular 
given  moment?  We  know  that  the  fact  A  always  pro- 
duces in  the  human  spirit  the  impression  B.  We  know 
that  tomorrow  at  a  particular  hour  the  fact  A  will  be  pro- 
duced before  a  certain  individual ;  can  we  necessarily  con- 
clude from  this  that  the  impression  B  will  be  realized  ? 

The  phenomenon  A  becomes  itself  decomposed  into  two 
elements:  (a)  A  human  being  in  a  certain  psychological 
state,  before  whom  a  certain  event  must  be  produced; 
(6)  An  event  which  must  present  certain  determined 
characteristics. 

For  it  to  be  a  certainty  that  the  contact  of  a  and  b  will 
produce  -B,  there  must  be  a  certainty  in  regard  to  the 
identity  of  a  and  b  as  they  are  conceived  in  the  law  and 
of  a  and  b  as  they  will  be  produced.  But  the  knowledge 
of  this  identity  presupposes  the  knowledge  of  an  infinite 
number  of  elements  of  every  nature.  For  a  certain  psy- 
chological state  presupposes  a  certain  physiological  state, 
which  in  its  turn  presupposes  the  realization  of  facts  of  a 
biological,  a  chemical,  a  physical,  a  meteorological,  an 
astronomical,  etc.,  order. 

Let  us  admit  that  such  a  study  is  possible  and  that  one 
may  arrive  at  the  certainty  that  the  A  which  will  be 
realized  tomorrow  is  identical  with  the  A  contained  in  the 


576  DETERMINISM  AND  LAW  [CH.  I 

hypothetical  law  "A  produces  B,"  that  is  to  say,  that  a 
and  b  will  be  identical  in  nature  with  what  they  should  be 
and  will  come  into  contact  at  the  desired  moment:  we 
cannot  even  then  affirm  that  B  will  be  realized,  because 
phenomenon  C  intervening  at  the  moment  of  contact, 
might  annul  or  modify  the  result  and  give  for  ex- 
ample B'. 

We  conclude  therefore:  Every  historical  law  or  law  of 
realization  is  based  upon  a  hypothetical  law  or  law  of 
affinity.  Every  historical  law  and  law  of  realization  will 
be  correct  if  it  can  establish:  1,  Perfect  identity  of  the 
elements  realized  or  to  be  realized  with  the  elements  of 
the  hypothetical  law  upon  which  it  is  based;  2,  The 
impossibility  of  the  intervention  of  an  obstacle. 

(3)  Combined  Laws  of  Realizations.  When  the  condi- 
tions which  we  have  just  stated  are  realized  —  but  only 
then  —  the  human  mind  has  passed  from  the  knowledge  of 
the  affinities  of  things  to  the  foresight  of  the  realization  of 
these  things.  It  is  now  very  fine  to  be  able  to  affirm 
that  a  particular  fact  will  be  produced  in  a  particular 
fashion,  at  a  given  moment,  and  that  necessarily.  But 
the  certainty  of  the  realization  of  an  isolated  fact  would 
be  of  no  great  practical  importance,  and  the  law  of  reali- 
zation simply  necessitates  an  independent  calculation  for 
each  fact  properly  so-called. 

It  has  been  the  ambition  of  the  human  race  to  attain 
more  surely  and  to  penetrate  more  easily  into  the  knowl- 
edge of  the  future.  It  has  attempted  to  discover  series  of 
causes  and  effects  which  are  capable  of  reproducing  them- 
selves indefinitely  under  the  same  forms  in  such  a  way 
that  the  establishment  of  one  fact  permits  immediately  of 
the  foresight  of  a  more  or  less  considerable  number  of 
facts.  Many  scholars,  especially  in  the  domain  of  the 
social  sciences,  appeal  and  have  appealed  to  laws  of  this 
kind,  without  however  indicating  their  mechanism,  or 
justifying  their  logical  value. 


§1]  DETERMINISM  AND  LAW  577 

We  are  going  to  point  out  a  few  of  the  forms  of  com-* 
bined  laws  of  realization,  to  which  we  are  obliged  to  give 
a  name. 

1.  Say  A,  decomposable  into  a  and  b,  ought  of  neces- 
sity to  produce  B,  decomposable  into  b  and  c,  which  in  its 
turn  ought  of  necessity  to  produce  C,  or  c  and  d,  which 
in  its  turn  will  produce  D,  or  d  and  e,  etc.,  down  to  Z. 
The  knowledge  of  A  alone  will  enable  us  to  foresee  the 
necessary  realization  of  Z  and  of  all  the  intermediate  phe- 
nomena, provided,  of  course,  that  there  is  perfect  iden- 
tity of  the  causal  elements  and  an  absence  of  any  ob- 
stacle. 

2.  It  might  be  improved.    If  one  believes  that  he  has 
discovered  that  Z  is  equivalent  to  z  and  a,  and  ought  to 
lead  back  to  A  a  second  time,  which  would  lead  back  to 
B,  which  would  lead  back  to  C,  etc.,  all  the  phenomena 
recreating   one   another   alternately   and   regularly,    we 
should  thus  have  a  sort  of  closed  circuit,  the  indefinite 
repetition  of  which  would  permit  us  to  foresee  an  indefi- 
nite number  of  phenomena. 

3.  Again  one  might  imagine  that  Z  is  not  equivalent 
to  z  and  a,  but  to  z'  and  a'  and  will  give  A',  a  phenom- 
enon identical  to  A,  but  upon  a  higher  order  —  that  is  to 
say,  higher  because  of  a  precise  and  constant  character,  — 
A'  will  give  B',  which  will  give  C',  etc.,  and  we  shall  thus 
have  the  spiral  development  dear  to  the  hearts  of  some 
great  thinkers. 

4.  The  oscillatory  movements,  or  alternate  changes  in 
opposite  directions,  are  more  complex  in  their  mechanism ; 
they  presuppose  the  combination  of  several  forces.    More- 
over, even  when  they  are  manifested  in  the  same  way,  the 
oscillatory  movements  may  be  instigated  by  very  diverse 
processes.    The  oscillation  of  the  pendulum,  due  to  force 
already  acquired,  has  not  the  same  "raison  d'etre"  as  the 
oscillation  of  the  balance  of  a  pendulum,  which  functions 
as  the  regulator  of  the  force  of  the  spring.    One  might  ob- 


578  DETERMINISM  AND  LAW  [Cn.  I 

tain  a  continual  oscillatory  movement  between  two 
points,  A  and  B,  by  the  transformation  of  the  attractive 
force  into  a  repulsive  force,  so  that  a  body  placed  be- 
tween the  two  would  be  attracted  by  B  from  the  time  it 
came  into  contact  with  A,  and  attracted  by  A  as  soon  as 
it  came  into  contact  with  B.  This  would  perhaps  not  be 
very  rare  in  the  domain  of  psychology. 

§  2.  Determinism  and  the  Idea  of  Law  in  the  Formation 
of  the  Legal  System.  The  formation  of  the  Law,  like  every 
historical  fact,  is  predetermined  by  the  totality  of  causes 
and  effects.  An  omniscient  intelligence  might  at  any  in- 
stant whatever  foresee  the  indefinite  unrolling  of  juridical 
phenomena  as  of  any  other  phenomena.  Man's  ambition 
is  to  become  this  omniscient  intelligence,  but  he  is  still 
far  from  attaining  it.  As  a  guiding  point  it  is  to  be  com- 
mended; but  we  must  not  be  overconfident  that  we  are 
approaching  it.  To  measure  the  range  of  our  means  of 
knowledge  is  the  first  condition  of  progress. 

It  is  certain  that  between  various  juridical  phenomena 
or  between  juridical  phenomena  and  certain  extra-jurid- 
ical phenomena,  one  may  discover  hypothetical  laws  which 
we  should  prefer  to  term  relations  of  affinity.  There  are 
relations  of  this  nature  between  certain  forms  of  inheri- 
tance and  certain  matrimonial  regimes.  These  relations 
of  affinity,  by  virtue  of  which  two  juridical  concepts  being 
brought  into  contact  will  of  necessity  give  a  particular 
proved  result  —  when  no  obstacle  intervenes  —  are  them- 
selves infinite.  With  a  view  to  the  better  understanding 
of  history,  it  is  well  to  note  those  which  have  been  real- 
ized most  frequently,  without  forgetting  that  frequency 
of  realization  cannot  rob  them  of  the  hypothetical  char- 
acter which  logic  imposes  upon  them.  But  these  hypo- 
thetical laws  serve  only  to  establish  the  relationship  be- 
tween cause  and  effect  and  lead  back  to  causality. 

As  regards  laws  of  realization,  it  is  absolutely  impos- 
sible to  formulate  them  logically,  for  the  double  reason 


§  2  ]  DETERMINISM  IN  FORMATION  OF  LAW  579 

that  the  identity  of  two  social  phenomena  can  be  affirmed 
only  approximately  and  that  the  bringing  into  contact  is 
always  liable  to  be  crossed  by  obstacles.  To  be  convinced 
of  this,  it  is  sufficient  to  consider  in  turn  the  incessant 
renewal  of  the  human  personnel,  on  the  one  hand,  and,  on 
the  other  hand,  the  multiplicity  of  the  creative  factors  in 
the  law  which  play  the  part  of  obstacles  in  regard  to  one 
another. 

I:  Renewal  of  the  Human  Personnel.  The  principle 
"Nothing  is  lost,  nothing  is  created,"  true  in  the  material 
and  physical  world,  is  false  for  animate  bodies,  and  be- 
comes more  and  more  false  according  as  one  ascends  in 
the  world  of  thought.  Death  is  incontestably  a  destruc- 
tion, destruction  of  life,  of  individuality  and  of  thought. 
This  destruction  is  perhaps  not  absolute:  materially,  it 
may  be  said  that  the  vital  and  intellectual  force  becomes 
decomposed  into  other  modes  of  movement;  spiritually, 
one  may  hope  for  a  certain  survival  of  the  individual  soul. 
But  for  the  world  wherein  we  live,  for  the  world  of  thought, 
deceased  beings  have  quite  disappeared;  their  intellectual 
force  is  abruptly  cut  short.  At  every  death,  the  world 
becomes  a  different  world.  "The  earth  was  worse  in  this 
year,"  said  an  old  French  poet  in  deploring  the  death  of 
another  talented  poet,  and  the  expression  was  a  well- 
chosen  one. 

Now  death  strikes  each  individual  in  an  order  com- 
pletely impossible  to  be  foreseen.  By  prolonging  certain 
existences  and  destroying  others  prematurely,  it  creates 
the  sphere  in  which  alone  every  intellectual  activity  can 
be  developed.  New  lives  come  continually  to  replace 
those  which  become  extinct,  but  never  resemble  them  in 
every  particular.  It  is  impossible  to  foresee  these  new 
beings.  The  laws  of  heredity  are  little  known  to  us  even 
among  the  simplest  beings.  The  double  play  of  birth 
and  death  produces  thought  at  every  moment  in  history. 
How  could  we  subject  this  world,  the  causes  of  which  are 


580  DETERMINISM  AND  LAW  [CH.I 

totally  inaccessible  to  our  foresight,  to  laws  which  would 
permit  us  to  foresee  its  nature  and  its  creations? 

To  this  it  has  been  answered  that  the  Law  is  a  creation 
of  collective  thought  and  that,  whatever  the  particulars  of 
the  individual  life,  the  group  remains  intact  in  spite  of  the 
change  in  its  elements.  We  do  not  at  all  intend  to  deny 
the  very  interesting  phenomena  of  collective  thought,  to 
which  we  have  already  devoted  a  chapter.  Passed  over 
unperceived  for  a  long  time,  when  they  were  discovered 
they  evoked  certain  exaggerated  statements  which  would 
probably  no  longer  be  made  at  the  present  day.  It  is 
certain  that  every  social  form  is  a  function  of  psycholog- 
ical expression;  that  the  same  brain  will  think  differently 
in  a  study,  a  drawing-room,  an  electoral  assembly,  a  par- 
liament, and  so  on.  Every  time  that  brains  collaborate 
in  the  same  work,  the  form  of  the  collaboration  is  redis- 
coverable  in  the  form  and  the  substance  of  the  collabo- 
rated idea.  But  the  psychological  power  is  in  the  brains 
and  cannot  be  elsewhere. 

However,  the  simplest  observation  proves  that  given  a 
certain  mass  of  ideas  which  exist  at  any  given  moment 
among  a  people,  the  attitude  of  various  individuals  with 
respect  to  these  ideas  may  be  very  different. 

1.  The  perfect  social  type.  The  individual  belonging 
to  this  category  brings  no  individual  element  to  the  vari- 
ous groups  through  which  he  passes.  He  always  expresses 
the  ideas  of  the  particular  environment  and  the  particu- 
lar moment  in  which  he  happens  to  be  and  to  live  with- 
out, moreover,  being  a  zero  in  its  formation.  It  would 
take  no  great  effort  of  the  imagination  to  write  his  com- 
plete biography,  to  reconstruct  all  he  said  under  every 
circumstance,  and  to  arrange  a  brilliant  and  varied  career 
for  him  without  deriving  anything  from  his  own  individu- 
ality. Such  a  person,  apparently  neutral,  is  not  perhaps 
without  influence  in  society,  because  he  nearly  always  has 
something  individual  about  him,  i.e.,  his  interest.  His 


§  2  ]  DETERMINISM  IN  FORMATION  OF  LAW  581 

talk  is  composed  of  nothing  but  banalities,  but  banalities 
which  benefit.  One  should  not  scorn  his  personal  role  in 
history. 

2.  The  voluntarist  type.    This  is  the  man  of  action. 
He  brings  energy  into  the  group;  accordingly,  the  ideas 
which  he  champions  will  be  more  particularly  upheld. 
His  influence  is  very  often  decisive.     It  must  be  re- 
marked however  that  the  rrian  of    action  is  rarely   a 
thinker;  but  this  is  not  necessarily  always  the  case.    The 
man  of  action  often  leaves  very  little  trace  of  his  individ- 
ual thought  through  the  fact  that  not  always  does  he 
have  much  of  it.     Sometimes  even  the  cause  which  he 
serves  is  imposed  upon  or  pointed  out  to  him  by  circum- 
stances rather  than  by  his  personal  originality.     When 
one  speaks  of  "force  of  will,"  "education  of  the  will,"  the 
word  "will"  is  taken  in  a  special  meaning  which  is  far 
from  being  the  philosophical  meaning.    He  who  has  "  will " 
in  the  ordinary  sense,  is  he  who  follows  a  line  of  conduct 
which  he  has  laid  out  for  himself  or  which  has  been  laid 
out  for  him,  not  he  whose  acts  of  volition  are  the  most 
personal,  not  he  who  puts  the  most  individuality  into  his 
words  and  his  actions.    The  misunderstandings  through 
which   "endurance"  and   "philosophical  will"  are  con- 
fused are  frequent. 

3.  The  intellectual  type.    The  intellectual  man  takes 
the  particular  ideas  as  he  finds  them,  refers  them  to  his 
own  mentality,  and  gives  them  a  new  form.    He  injects 
his  personal  logic  into  the  Law  or  into  institutions  and 
thus  communicates  it  to  society. 

4.  The  type  of  the  genius.     The  genius,  whose  role  in 
history  has  been  so  much  discussed,  is  he  who  draws  out 
from  his  own  individuality  ideas  that  are  totally  unper- 
ceived  at  the  time  he  presents  them.     He  brings  into 
social  life  the  maximum  of  individual  contribution.     To 
be  sure,  we  do  not  know  how  far  down  into  his  subjec- 
tivity it  would  be  necessary  to  go  to  be  able  to  under- 


582  DETERMINISM  AND  LAW  [Cn.I 

stand  the  exact  nature  of  his  contribution.  We  mean 
simply  to  express  a  fact  that  is  incontestable  according  to 
even  superficial  historical  observation  —  although  it  has 
been  denied  without  reason  —  that  there  are  individuals 
who  are  in  absolute  opposition  to  the  mental  atmosphere 
in  which  they  live. 

This  classification  admits  of  no  hierarchy,  no  judgment 
whatever  upon  the  relative  values  of  the  four  categories 
in  question.  All  may  contain  very  remarkable  and  very 
ordinary  men.  Its  sole  aim  is  to  summarize  the  different 
forms  of  the  influence  of  the  individual  upon  society. 
The  procession  of  human  thought  varying  of  necessity 
according  to  the  preponderance  of  any  particular  type, 
the  role  of  the  incessant  renewal  of  the  human  personnel 
appears  to  be  of  considerable  importance  in  history. 

II :  Multiplicity  of  the  Creative  Factor  in  Law.  In  order 
to  know  the  resultant  of  a  combination  of  forces,  it  is 
necessary  to  know  what  these  forces  are  and  to  be  able  to 
measure  them.  The  production  of  every  juridical  phe- 
nomenon is  nothing  more  than  the  resultant  of  a  combi- 
nation of  forces  which  we  cannot  measure  and  only  a  few 
of  which  we  know.  It  is  therefore  impossible  to  foresee 
the  realization  of  such  phenomena. 

The  capacity  of  the  human  cranium  and  the  nature  of 
the  brain  form  one  of  the  prime  factors  in  all  mental  labor. 
No  one  can  dispute  the  fact  that  if  mankind  should  as- 
sume the  skull  of  the  gorilla,  juridical  science,  like  art, 
philosophy  and  human  customs,  would  be  considerably 
affected.  This  hypothetical  degradation  could  not  be 
denied ;  it  would  be,  however,  only  the  result  of  a  series  of 
degradations  less  sensible  but  quite  as  real.  Now  cranial 
capacity  is  inherent  in  the  race,  and  the  future  of  each 
race  depends  upon  circumstances  which  we  cannot  know. 

If  we  suppose  the  intellectual  power  of  humanity  at  a 
given  moment  to  be  known,  how  will  this  affect  the  psy- 
chological labor  that  creates  the  law  and  institutions?  It 


§2]  DETERMINISM  IN  FORMATION  OF  LAW   583 

will  result  in  a  combination  of  phenomena,  some  springing 
from  collective,  and  others  from  individual  psychology. 

Collective  psychology  expresses  the  tendencies  which 
every  social  form  gives  to  individual  thought.  The  de- 
cisions at  which  any  particular  group  will  arrive,  the 
ideas  and  the  customs  it  will  adopt,  will  vary  every  time 
that  the  method  of  grouping  is  changed.  It  would  be  in- 
dispensable therefore  to  know  exactly  what  these  various 
methods  of  grouping  will  be  in  order  to  foresee  the  future 
of  the  Law. 

It  would  not  be  less  necessary  to  know  how  the  various 
elements  of  individual  psychology  will  become  associated. 
These  elements  are  numerous:  (a)  the  most  widely  op- 
posed sentiments  meet  and  conflict  in  juridical  work; 
(b)  the  most  varied  intellectual  forms;  diseases  of  thought, 
reason,  logic,  and  the  metaphysical  principle  of  justice, 
know  therein  their  moments  of  triumph  and  of  defeat. 
Finally,  (c)  material  and  economic  factors  in  all  their 
complexity  obtrude  their  combined  forces  and  modify 
even  without  one's  being  aware  of  it  the  direction  of  pure 
thought. 

It  is  very  easy  no  doubt  to  simplify  the  problem  by 
choosing  from  this  list  a  single  one  of  the  factors  in  jurid- 
ical creation  and  considering  all  the  others  as  non-exist- 
ent. This  method  of  procedure  has  often  been  adopted. 
But  it  is  absolutely  impossible  to  justify  to  the  slightest 
extent  this  fashion  of  reasoning.  In  legal  history,  there 
are  no  laws  of  realization.  The  multiplicity  of  the  fac- 
tors which  may  play  the  part  of  obstacles  to  one  another, 
renders  them  absolutely  impossible. 

Ill:  Rational  Laws  of  Realization.  There  is  no  necessity 
of  swinging  from  one  exaggeration  into  another.  From 
the  fact  that  there  is  no  logical  means  of  deducing  from 
the  existence  of  a  social  fact  the  necessary  realization  of 
some  other  particular  social  fact,  it  need  not  be  concluded 
that  we  must  abstain  completely  from  all  consideration 


584  DETERMINISM  AND  LAW  [  CH.  I 

of  the  future.  But  these  considerations  are  beyond  the 
pale  of  logic  and  belong  to  the  merely  rational,  intellec- 
tual labor  that  is  not  rigorous  but  is  indispensable  in  prac- 
tice. There  are  social  facts  which  may  legitimately  in- 
duce the  provision  of  others  without  this  prevision  ever 
having  the  character  of  certainty.  We  shall  term  such 
previsions  rational  laws,  although  the  word  "law"  is 
scarcely  a  happy  one  in  this  instance. 

Rational  laws  follow  more  or  less  vaguely  the  contours 
of  logical  laws  and  are  characterized  by  probability  and 
not  by  certainty.  Given  the  series  A  Z  in  which  logical 
law  would  permit  the  deduction  of  the  necessary  realiza- 
tion of  Z  from  the  existence  of  A,  rational  law  could 
deduce  only  the  more  or  less  probable  realization  of 
something  more  or  less  resembling  Z.  Appraised  at  their 
correct  value,  these  generalizations  are  of  the  greatest 
interest  and  form  the  substance  of  history.  To  deprive 
oneself  of  them  would  be  a  crime.  For  however  numerous 
they  may  be,  and  even  if  they  are  apparently  contradic- 
tory, they  will  end  by  all  agreeing  more  or  less  with  one 
another. 

Every  historical  law  is  a  formula  in  which  there  is 
something  true,  but  nothing  necessary.  Take  Jhering's 
formula,  "The  history  of  punishment  is  a  constant  aboli- 
tion," which  might  be  translated  by  this  other  formula: 
"The  more  cultivated  a  people  becomes,  the  less  cruel  it 
is  in  the  repression  of  offences."  It  is  none  the  less  true 
that  the  penal  law  of  the  sixteenth  century,  a  period  of 
great  culture,  was  infinitely  more  cruel  than  that  of  the 
twelfth  or  even  of  the  seventh  century,  periods  of  ex- 
tremely little  culture.  He  who  affirms :  "  As  they  become 
more  enlightened,  men  will  become  less  wicked,"  says 
something  that  is  very  reasonable  but  not  very  certain. 

Rational  laws  of  cycles  and  rational  laws  of  oscillations 
are  numerous  in  the  history  of  civilization  and  in  juridical 
history.  Luther's  tipsy  peasant  riding  upon  his  donkey, 


§2]  DETERMINISM  IN  FORMATION  OF  LAW   585 

lurching  first  to  the  right  and  then  equally  far  to  the  left, 
is  the  symbol  of  laws  of  oscillation.  Thus  societies  oscil- 
late between  liberalism  and  despotism,  belief  and  unbe- 
lief, practical  law  and  scholarly  law  —  repulsed  by  that 
which  has  attracted  them  for  too  long  a  time  and  only 
crossing  the  point  of  equilibrium.  To  derive  new  rational 
laws  is  to  render  a  service  to  the  understanding  of 
history,  but  to  try  to  transform  them  into  laws  of  logical 
realization  is  equivalent  to  falsifying  their  nature. 

IV:  Metaphorical  Laws  or  Formulas.  It  frequently 
happens  that  one  and  the  same  formula  may  be  appli- 
cable to  a  great  number  of  phenomena  and  those  of  very 
varied  nature:  division  of  labor,  differentiation,  competi- 
tion, imitation,  selection,  adaptation,  concentration,  ten- 
dency to  organic  harmony,  and  so  on.  The  fact  that 
we  may  class  under  one  of  these  denominations,  phenom- 
ena of  a  physical,  a  biological,  a  moral,  or  a  juridical 
order,  establishes  no  similarity  in  the  nature  of  these 
various  phenomena.  An  egg  the  cells  of  which  become 
divided  and  differentiated  during  incubation  bears  no  re- 
lation to  the  division  of  the  three  powers,  legislative,  ex- 
ecutive and  judiciary.  There  may  be  a  certain  analogy 
between  the  mechanism  of  the  two  operations,  but  an  an- 
alogy simply  of  form  and  not  of  substance. 

Many  minds  are  greatly  struck  with  these  coincidences 
in  the  structure  of  phenomena  that  are  by  nature  very 
far  removed  from  one  another,  and  find  in  them  some- 
thing deep  and  mysterious.  For  them  they  are  laws,  true 
laws  of  nature,  since  they  are  exhibited  in  all  domains 
with  remarkable  regularity.  As  a  matter  of  fact,  these 
are  in  nowise  laws,  but  simple  formulas,  successful  be- 
cause they  introduce  a  certain  unity  of  form  into  the 
diverse  branches  of  human  knowledge,  but  with  no  other 
significance.  Every  phenomenon  of  adaptation,  division 
of  labor,  and  so  on,  preserves  its  special  "raisons  d'etre," 
its  special  nature  and  its  special  effects. 


586  DETERMINISM  AND  LAW  [  CH.  I 

BIBLIOGRAPHY 

BURIDAN,  Questiones  in  X  libros  Ethicorum  Aristotelis  (1489); 
MALEBRANCHE,  CEuvres  completes,  ed.  by  JULES  SIMON  (1846); 
KING,  De  engine  mali  (1702);  BAYLE,  Cogitationes  rationales  de 
Deo  anima  et  malo  (1680);  ABB£  PLOUQUET,  Examen  du  fatalisme 
(1757);  SCHOPENHAUER,  Ueber  die  Freiheit  des  Willens;  HERBART, 
Briefe  zur  Lehre  der  Freiheit  des  menschlichen  Willens  (1836); 
FRANCK,  Dictionnaire  des  sciences  philosophiques;  WINDELBAND, 
Lehrbuch  der  Geschichte  der  Philosophic  (1912). 

BOUTROUX,  La  contingence  des  lois  de  la  nature;  L'ide'e  de  loi 
naturelle  dans  la  science  et  la  philosophic  contemporaine;  FOUILLEE, 
Liberte"  et  determinisme;  GOURD,  Le  Phenomene;  GUYAU,  Morale 
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COMTE,  Cours  de  philosophic  positive;  FINCK,  La  notion  de  la 
loi  chez  Comte;  TARDE,  Les  lois  sociales;  BAGEHOT,  Physics  and 
Politics;  G.  DE  GREEF,  Les  lois  sociologiques;  VIERKANDT,  Die 
Stetigkeit  im  Kulturwandel ;  KIDD,  Le  due  leggi  fondamentale  della 
sociologia,  in  Rivista  di  scienza  (1907);  LIMENTANI,  La  previzione 
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d'Histoire  du  Droit  francais,  Preface;  WAHRSCHAUER,  Versuch 
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sophie,  X,  352;  NOE,  Recherches  sur  la  vie  oscillante. 

PAULHAN,  La  volonte;  PA  vox,  L'e"ducation  de  la  volonte;  LAPIE, 
Logique  de  la  volonte;  BERTRAND,  La  psychologic  de  1'effort. 


CHAPTER  II 
EVOLUTION,   CHANGE,   PROGRESS 

§1.  INTRODUCTION.  — §2.  VITAL  EVOLUTION:  (I)  NATURE; 
(II)  EVOLUTION  OF  THOUGHT  AND  OF  INSTITUTIONS.  — §  3.  TRANS- 
FORMISTIC  EVOLUTION:  (I)  ITS  DOMAIN;  (II)  SURVIVANCE  AND 
ARCHAISM.  — §4.  PROGRESSIONAL  EVOLUTION:  (I)  CONCEPTIONS 
OF  PROGRESS;  (II)  GENERAL  OR  SPECIAL  PROGRESS;..(III)  CHANCES 
OF  ITS  REALIZATION.  — §5.  EVOLUTION  AND  THE  UNIVERSE; 
(I)  HIDDEN  PLAN  OF  THE  UNIVERSE;  (II)  THEISTIC  AND  PANTHE- 
ISTIC SYSTEMS. 

§  1.  Introduction.  The  diverse  ideas  which  may  be 
comprised  under  the  word  "evolution"  are  not  absolutely 
new.  It  would  not  be  difficult  to  discover  their  elements : 
in  the  literature  of  very  old  peoples.  Nevertheless  it  is 
only  within  relatively  recent  times  that  they  have  been 
introduced  into  historical  methods  and  applied  regularly 
and  systematically. 

Like  all  words  which  enjoy  any  degree  of  prestige,  the 
word  "evolution"  has  a  rather  fluctuating  meaning,  which 
first  of  all  it  is  well  to  point  out  precisely.  In  its  original 
acceptation,  it  signifies  simply  the  gradual  transformation 
which  beings  animate  and  inanimate,  things  and  thoughts, 
undergo  through  the  effect  of  time.  The  play  of  causes 
and  effect  taking  place  in  time  and  not  being  able  to  take 
place  outside  of  time,  evolution  would  thus  lead  back  to 
universal  determination  and  would  be  an  expression  of 
no  particular  interest.  But  the  expression  evolution  may 
be  restricted  to  the  living  being  and  employed  to  desig- 
nate the  transformations  which  it  undergoes  in  the  course 
of  its  existence  through  the  very  fact  of  life.  This  will  be 
the  vital  evolution  which  describes  the  ages  of  every  exist- 
ence from  the  cradle  to  the  grave. 

587 


588      EVOLUTION,   CHANGE,   PROGRESS     [  CH.  II 

In  another  sense,  transformistic  evolution  establishes  the 
kinship  of  all  living  beings  and  of  all  species,  and  explains 
their  differentiation  through  the  diversity  of  conditions 
to  which  they  have  been  submitted  in  the  course  of  time. 
In  the  physical  as  in  the  moral  domain,  it  traces  com- 
plex forms  back  to  simple  primitive  forms. 

Finally,  certain  evolutionists  believe  that  it  is  in  the 
nature  of  living  beings  to  become  raised  from  lower  forms 
toward  higher  forms  by  a  slow  but  steady  transformation. 
Such  evolution  may  therefore  be  termed  progressional 
evolution. 

§  2.  Vital  Evolution.  It  is  the  lot  of  every  living  being 
to  pass  from  birth  to  death  by  a  series  of  periods  of 
growth  and  of  decay  which  constitute  the  whole  of  its 
life.  It  evolves  by  virtue  of  its  own  vital  force,  but  also 
under  the  influence  of  the  natural  forces  surrounding  it. 
The  living  being  has  its  own  energy,  possesses  in  itself 
the  direction  of  its  own  destiny;  but  more  than  the  dead 
body  it  is  dependent  upon  its  environment.  It  is  able  to 
subsist  only  by  an  incessant  action  upon  forms  of  matter 
which  are  foreign  to  it,  otherwise  it  loses  life. 

I:  Nature  of  Vital  Evolution.  Would  the  living  being 
plunged  into  abstract  time  be  capable  of  any  develop- 
ment whatever?  It  is  certain  that  it  would  not.  But 
what  would  be  lacking  would  be  perhaps  the  substance  of 
development  and  not  the  "elan,"  the  potentiality. 

Nothing  can  claim  to  be  eternal.  But  animate  and  in- 
animate bodies  are,  in  relation  to  length  of  existence,  very 
differently  situated.  A  body  devoid  of  life  may,  in  cer- 
tain states  of  isolation,  subsist  indefinitely  without  under- 
going any  appreciable  change.  A  living  body  may  not 
remain  such  without  undergoing  at  every  instant  a  series 
of  incessant  transformations.  Life  involves  continual 
toil,  and  through  this  continual  toil  the  being  increases  in 
size,  develops,  reproduces  itself,  becomes  weaker  and  dies. 
Time  is  always  filled  by  a  series  of  phenomena  through 


§2]  VITAL  EVOLUTION  589 

which  life  is  able  to  be  preserved  and  which  are  perpetu- 
ally substituting  a  new  world  for  an  old.  "  It  is  time  which 
kills  us,"  says  a  popular  proverb.  No,  time  kills  no  one. 
But  the  living  being  cannot  be  locked  up  like  a  medal 
which  can  lie  several  centuries  and  immediately  appear 
as  new.  It  can  live  only  through  a  continual  struggle 
which  wastes  it  away  more  or  less  rapidly.  It  is  therefore 
impossible  to  know  what  role  in  the  existence  of  a  living 
being  pertains  to  the  inner  vital  force  which  is  peculiar  to 
it,  to  its  spontaneity,  and  what  role,  to  the  exterior  envi- 
ronment in  which  the  being  is  developed. 

The  totality  of  the  exterior  forces  with  which  each  is 
obliged  to  come  into  continual  contact  in  order  to  live 
and  which  may  be  termed  the  environment,  is  often  al- 
most identical  for  a  large  number  of  individuals.  All 
men  are  born,  grow,  live  and  die  in  certain  conditions 
which  are  common  to  the  whole  human  race,  and  in  cer- 
tain conditions  which  are  common  to  the  whole  of  a 
group  or  are  peculiar  to  each  individual.  Childhood, 
maturity  and  old  age  are  the  regular  phases  of  every 
human  life.  Hence  certain  traits  of  resemblance  among 
all  destinies. 

II:  The  Evolution  of  Thought  and  of  Human  Institu- 
tions. When  we  speak  of  the  evolution  of  a  civilization, 
an  institution,  a  technic,  or  a  logical  form,  do  we  simply 
use  a  happy  metaphor,  a  successful  piece  of  imagery,  that 
enables  us  better  to  engrave  upon  our  memory  a  certain 
succession  of  facts,  but  does  not  enable  us  to  understand 
its  true  mechanism?  Or  is  there  on  the  contrary  some 
similarity,  perhaps  even  an  identity,  between  this  growth 
and  the  wear  and  tear  through  time  which  living  beings 
undergo  by  the  very  fact  of  life  ? 

Moral  evolution  appears  at  first  glance  very  different 
from  physical  evolution. 

(a)  It  is  generally  understood  that  there  takes  place 
among  individuals  a  moral  evolution  corresponding  to 


590      EVOLUTION,   CHANGE,   PROGRESS     [  CH.  II 

the  physical  evolution.  But  this  phenomenon,  purely  an 
individual  one,  is  in  itself  of  no  great  importance  in  his- 
tory. There,  it  is  an  entire  people  or  a  still  larger  group 
whose  birth,  prosperity,  decay  and  death  are  observed. 
Now  every  human  collectivity  is  composed  —  at  least 
nearly  always  —  of  one  and  the  same  proportion  of  chil- 
dren, adults  and  old  persons.  The  play  of  birth  and 
death  allows  it  a  very  nearly  equal  sum  of  intellectual 
and  moral  vigor.  Accordingly,  it  may  be  said  from  this 
point  of  view  that  every  human  grouping  is  always  of  the 
same  age,  and  since  its  physical  state  is  always  practically 
identical,  its  moral  state  would  of  necessity  always  re- 
main stable. 

(b)  To  this  it  is  answered  that  evolution  affects  the 
collectivity  itself  and  not  the  individuals  which  compose 
it.    If  this  point  of  view  were  admitted,  there  would  still 
be  a  great  difference  between  the  evolution  of  the  ani- 
mate being  and  moral  evolution.    The  first  is  produced 
necessarily  by  contact  with  life  and  is  more  or  less  regu- 
lar.    Ten  men  born  the  same  day  will  not  all  die  the 
same  day,  they  will   not  grow  old  at  exactly  the  same 
time;  but  the  differences  will  be  quite  slight  and  will  not 
pass  a  certain  limit  easy  to  be  foreseen.    Of  ten  peoples 
of  the  same  age,  the  destinies  in  the  course  of  time  may 
be  extremely  varied.     Upon  one  and  the  same  date,  a 
people  that  is  said  to  be  young  is  as  far  as  duration  is 
concerned  as  old  as  an  old  people.    The  one  which  has 
finished  its  evolution  is  of  the  same  real  age  as  the  one 
which  is  just  beginning  it.    Accordingly,  moral  life  may 
be  suspended  indefinitely  and  resumed  abruptly,  which  is 
contrary  to  the  physical  life  of  animate  beings. 

(c)  The  phenomenon  of  moral  evolution  in  humanity 
is  particularly  complex,  because  the  great  history  of  the 
human  race  is  made  up  of  the  history  of  civilizations,  the 
history  of  civilizations  of  the  history  of  peoples,  the  his- 
tory of  peoples  of  the  history  of  lesser  groups,  etc.     In 


§  2  ]  VITAL  EVOLUTION  591 

great  histories  and  in  small,  this  regular  advance  toward 
development,  and  then  toward  decline,  is  equally  marked. 

The  history  of  humanity  is  not  to  be  confused  with  the 
successive  histories  of  diverse  civilizations  (in  the  con- 
crete meaning  of  the  word). 

In  every  age,  the  world  contains  at  the  same  time  liv- 
ing and  active  peoples  and  stagnant  peoples.  In  our  day, 
certain  races  are  more  savage  than  other  races  were  three 
thousand  years  ago.  Written  history  speaks  of  peoples 
which  act  and  not  of  those  in  a  state  of  stagnation.  What 
would  it  have  to  say  of  such  peoples?  But  the  real  his- 
tory of  humanity  could  not  neglect  them.  Its  function 
would  be  to  furnish  with  exactness  for  every  moment  of 
time  the  proportion  and  the  respective  power  of  civilized 
and  non-civilized  peoples.  The  physiognomy  of  the 
human  race  taken  as  a  whole  has  undergone  incessant 
and  continued  variations.  And  very  probably  sooner  or 
later,  when  its  evolution  will  have  been  completed,  the 
life  of  the  human  species  will  reproduce  the  phases  of  the 
life  of  the  individual:  birth,  growth,  zenith,  decline  and 
death.  Of  course,  this  is  only  a  hypothesis  which  can 
never  be  verified  but  may  be  of  use  in  the  general  under- 
standing of  history. 

Leaving  the  non-civilized  out  of  the  question,  if  we 
consider  the  totality  of  peoples  in  contact  with  one  ano- 
other,  in  touch  religiously,  morally,  and  intellectually,  we 
obtain  a  "civilization"  in  the  general,  but  concrete  mean- 
ing of  the  word:  Grecian,  Roman,  Christian,  Islamitic 
and  other  civilization.  Every  great  civilization  knows  the 
phases  of  growth,  zenith  and  decline.  It  is  not  always 
easy  to  state  their  limits  precisely.  Furthermore  it  is 
generally  agreed  that  the  life  of  a  civilization  is  the  syn- 
thesis of  the  life  of  a  certain  number  of  peoples,  each  of 
which  has  its  own  evolution.  In  the  Grecian  civilization, 
Asia  Minor,  Athens,  and  Lacedemonia  had  their  periods 
of  grandeur  and  decay.  If  one  cared  to  enter  upon  a 


592      EVOLUTION,   CHANGE,   PROGRESS    [  CH.  II 

more  detailed  examination,  it  would  be  easy  to  establish 
the  fact  that  the  evolution  of  peoples  is  the  synthesis  of 
the  evolutions  of  less  numerous  groups,  —  tribes,  classes, 
families,  —  so  that  these  movements  of  moral  and  institu- 
tional evolution  will  always  have  in  them  something  in- 
definite and  fluctuating.  No  certain  conclusions  could  be 
drawn  from  them,  but  it  would  be  wrong  to  deny  their 
reality. 

(d)  The  word  "civilization"  has  a  double  meaning.  It 
may  be  applied  to  the  totality  of  peoples  united  in  a  com- 
mon work,  living  more  or  less  in  contact  with  one  another 
and  exchanging  ideas  and  customs.  There  were  not  only 
true  Greeks  in  the  Grecian  civilization;  still  less,  was  the 
small  Roman  people  the  sole  author  of  Roman  civiliza- 
tion. The  totality  of  peoples  which  are  united  in  one  and 
the  same  intellectual  elaboration  forms  a  social  and  his- 
torical group  which  may  be  termed  "civilization-group." 

To  this  civilization-group  of  human  beings  living  at  a 
certain  period  and  under  certain  conditions  may  be  con- 
trasted, from  the  view-point  of  terminology,  the  "civili- 
zation-condition," the  totality  of  psychological  elements 
which  remain  stagnant  among  stagnant  peoples,  and  are 
incessantly  transformed  among  progressive  peoples. 

A  civilized  people  is  one  which  is  found  to  be  in  a  con- 
dition of  motion.  In  practice,  the  condition  of  civilization 
is  only  perceptible  after  a  certain  period  of  ascendency 
and  no  longer  so  when  decadence  is  at  hand.  Now  all  the 
intellectual  elements  whose  successive  transformations 
produce  the  general  evolution  of  a  civilization  move  inde- 
pendently of  one  another.  Philosophy,  art,  economics, 
and  law  each  has  its  own  distinct  life  and  becomes  trans- 
formed more  or  less  rapidly  according  to  circumstances. 
Each  of  the  great  disciplines  is  itself  only  the  synthesis  of 
more  restricted  disciplines  which  have  their  own  peculiar 
movements  and  their  particular  destinies.  Thus  for  art: 
dancing,  poetry,  music,  painting,  and  architecture  flourish 


§2]  VITAL  EVOLUTION  593 

or  fall  into  a  state  of  decadence  independently  of  one  an- 
other. It  is  the  same  with  law:  political,  technical  and 
practical  law,  although  they  mutually  influence  one  an- 
other, do  not  have  the  same  periods  of  brilliancy  or  of 
decline. 

This  life  of  peoples,  civilizations,  and  institutions  which 
is  all  presented  under  mysterious  forms  permits  of  a 
very  positive  explanation,  if  one  is  willing  to  admit  that 
all  collective  psychology  can  be  traced  back  to  the  psy- 
chology —  or,  if  it  wished,  even  to  the  physiology  —  of  the 
individual.  Take  an  individual  arrived  at  the  age  of  rea- 
son whose  ideas  upon  any  moral  or  intellectual  question 
whatever  are  settled.  Forty  years  later,  his  ideas  upon 
the  same  question  will  have  become  changed  through 
work  and  experience  and  also  by  the  wear-and-tear  upon 
the  brain  in  its  contact  with  life.  Such  is  the  elementary 
phenomenon,  the  grain  of  sand  which,  enormously  multi- 
plied, will  form  the  immense  domain  of  human  evolution. 
The  idea  modified  by  an  early  evolution  in  the  course  of  a 
human  life  will  not  be  presented  by  the  father  to  the  son 
just  as  the  father  received  it,  but  in  a  riper  form.  The 
son,  if  he  holds  the  same  idea,  will  transform  it  in  his 
turn  and  transmit  it  thus  modified  to  succeeding  genera- 
tions and  so  on ;  accordingly,  at  the  end  of  a  certain  time, 
the  thought  of  a  young  man  is  no  longer  a  young  thought. 
It  shows  perforce  signs  of  the  experience  and  the  wear- 
and-tear  of  life  of  his  ancestors.  Thus  are  formed  societies 
in  which  predominate  by  turns,  the  tendencies  of  youth, 
maturity,  and  old  age. 

It  is  therefore  quite  natural  for  the  course  of  moral 
evolution  to  be  very  irregular,  for  peoples  to  remain  for 
ages  in  the  same  state  of  mind,  without  changing  their 
beliefs,  and  carrying  on  the  same  industries  and  observ- 
ing the  same  usages.  In  so  far  as  a  moral  element  is  not 
connected  with  the  individual  life  by  mental  effort,  it  re- 
mains indefinitely  like  itself;  it  experiences  neither  devel- 


594      EVOLUTION,   CHANGE,   PROGRESS    [CH.  II 

opment  nor  decay.  This  is  not  life,  this  is  not  death;  this 
is  stagnation.  Thus  the  moral  elements  of  existence  may, 
like  inanimate  objects,  be  shut  off  from  outside  friction 
and  so  last  indefinitely.  The  more  they  participate  in 
human  activity,  the  more  rapidly  they  become  worn  out. 
This  is  the  case  with  laws  and  with  the  Law,  as  a  whole,  as 
well  as  with  religion,  morality,  and  philosophy. 

Thus  the  numerous  works  which  philosophers  of  his- 
tory have  devoted  to  the  comparison  of  different  civiliza- 
tions and  of  periods  in  their  history  are  not  mere  child's 
play.  They  correspond  to  something  real  and  positive. 
By  the  force  of  circumstances,  their  results  will  always  be 
extremely  uncertain,  which  is  no  reason  to  neglect  them. 
Thus  one  may  compare  the  middle  Grecian  age,  the  tenth 
to  the  seventh  century  B.C.,  with  the  middle  Christian 
age.  Between  the  two  periods  there  are  certainly  resem- 
blances which  are  not  simply  fortuitous  but  pertain  to  a 
certain  equality  in  the  ages  of  the  two  eras  of  civilization. 
But  the  same  mechanism  of  evolution  in  the  moral  life  of 
humanity  shows  us  that  these  comparisons  could  not  be 
pushed  too  far. 

§  3.  Transformistic  Evolution.  The  theory  of  transfor- 
mistic  evolution  is  based  upon  two  essential  hypotheses: 

(a)  The  original  kinship  of  all  beings  derived  from 
atoms  at  first  identical.    To  avoid  any  embarrassing  con- 
troversy —  of  no  use  here  —  upon  the  identity  in  origin  of 
the  organic  and  the  inorganic,  it  may  be  stated  more 
modestly :  the  original  kinship  of  all  living  beings  derived 
from  cells  at  first  identical. 

(b)  The  formation  of  species  by  a  slow  differentiation 
resulting  from  the  variety  in  the  conditions  of  existence, 
from    the    influence    of    environment    upon    individuals 
through  generations.    This  second  hypothesis  is  moreover 
only  a  corollary  of  the  first.    Because  since  living  beings 
are  at  the  present  time  widely  separated  from  the  phys- 
ical, the  psychological  and  the  social  point  of  view,  it  is 


§3]          TRANSFORM ISTIC  EVOLUTION  595 

logically  necessary,  if  we  suppose  them  to  be  of  common 
origin,  for  a  series  of  manifold  and  indefinite  causes, 
which  may  be  called  the  "conditions  of  life,"  to  have  dif- 
ferentiated them. 

By  this  theory,  the  characteristics  of  every  living  being 
are  explained  in  their  entirety  by  its  history  and  the  his- 
tory of  its  species.  The  higher  forms  of  life,  the  most  ad- 
vanced animals,  have  been,  according  to  circumstances, 
more  differentiated  and  farthest  removed  from  the  primi- 
tive forms.  The  rudimentary  forms  have,  on  the  con- 
trary, undergone  the  least  changes.  Applied  at  first  to 
the  physical  development  of  animal  species,  the  same  hy- 
potheses have  led  to  the  better  understanding  of  the 
cerebral,  that  is,  the  intellectual,  formation  of  man.  Just 
as  the  higher  species  have  arisen  from  the  lower  species 
by  a  succession  of  certain  particular  features  of  their  his- 
tory, the  higher  functions  of  intelligence  spring  from  the 
lower  functions  and  owe  all  their  improvement  to  the  ex- 
ternal and  accidental  circumstances  which  have  permitted 
and  instigated  their  development.  Accordingly  all  sys- 
tems of  morality,  and  Law,  all  religions  and  institutions, 
are  born  of  the  same  primitive  psychological  elements. 
Their  diversity  is  explained  by  the  inequality  in  the  de- 
gree of  their  kinship  to  the  original  type  as  well  as  by 
the  diversity  of  the  environment  in  which  their  develop- 
ment has  occurred. 

Thus  the  theory  of  evolution  binds  together  all  living 
beings,  considered  in  their  physiology,  their  psychology, 
their  logic  and  their  customs,  into  an  immense  genealog- 
ical tree  where  the  most  advanced  and  most  completely 
modified  forms  are  none  the  less  related  to  crude  and 
slightly  developed  forms.  This  kinship  is  of  great  value 
in  the  understanding  of  history.  It  permits  the  past  of 
superior  beings  to  be  discovered  in  the  present  of  inferior 
beings.  It  permits  human  thought  to  be  studied  from  its 
humblest  beginnings,  all  its  effort  toward  the  best  to  be 


596      EVOLUTION,   CHANGE,   PROGRESS    [  CH.  II 

traced,  and  even,  up  to  a  certain  point,  the  influences 
which  have  allowed  and  incited  its  improvement  to  be 
divined.  Very  primitive  man  undoubtedly  resembles  cer- 
tain animals  which  we  may  know,  as  well  as  children, 
or  deaf-mutes  who  have  not  profited  by  historical  edu- 
cation. Savages  are,  more  or  less,  what  the  ancestors  of 
civilized  men  were.  Semi-civilized  peoples  present  as 
many  phases  of  transition,  and  the  general  comparison  of 
their  psychology  and  manners  is  the  best  means  of  re- 
building history. 

By  comparison,  the  legal  systems  of  all  peoples  will  be 
mutually  clarified.  The  study  of  primitive  peoples  aids  in 
the  understanding  of  what  the  most  civilized  peoples  were 
in  a  more  or  less  distant  past,  and  the  history  of  civilized 
peoples  allows  one  to  divine  what  transformations  primi- 
tive peoples  may  undergo.  Nevertheless,  as  far  as  Law  is 
concerned,  comparison  cannot  be  made  by  means  of  jurid- 
ical documents  properly  speaking.  Because  every  jurid- 
ical document  however  ancient  implies  a  relatively  ad- 
vanced state  of  civilization.  The  true  origins  of  institu- 
tions and  their  oldest  forms  could  not  be  revealed  through 
texts  of  this  nature.  It  is  necessary  to  have  recourse  to 
ethnography,  and  folk-lore,  to  discover  the  rudimentary 
psychology  from  which  the  subtle  and  refined  legal  psy- 
chology is  descended. 

The  theory  of  transformistic  evolution  and  the  com- 
parative method  which  springs  from  it  —  every  compara- 
tive method  is  not  necessarily  based  upon  transformism  — 
have  rendered  tremendous  services  to  the  history  of  Law, 
as  well  as  to  all  history  and  to  Law  itself.  These  ideas 
have  above  all  else  given  inspiration  to  workers  of  all 
countries,  and  the  tremendous  documentation  which  has 
resulted  from  them  has  thrown  into  complete  confusion 
the  ancient  conceptions  of  history.  The  accumulation  of 
materials  has,  however,  not  been  without  inconvenience. 
The  philosophical  interpretation  of  documents  has  not 


§3]          TRANSFORMISTIC  EVOLUTION  597 

been  able  to  keep  step  with  the  quantity,  and  the  com- 
parativists  have  found  themselves  embarrassed  with  their 
too  great  riches. 

Maxime  Kovalewsky,  one  of  the  masters  of  the  school, 
acknowledged  this  not  very  long  ago,  and,  so  far  as  I 
know,  the  situation  has  not  changed  much  since.  He  rec- 
ognized the  fact  that  the  science  of  the  primitive  history 
of  humanity  lacked  "general  conclusions."  But  is  it  cer- 
tain that  by  reconciling  all  the  documents,  general  con- 
clusions could  be  established  which  would  force  them- 
selves upon  the  conviction  of  everyone  without  any  pos- 
sible discussion?  This  is  hardly  possible.  Moreover,  it 
is  not  a  question  of  criticizing  the  comparative  method, 
which  would  lie  beyond  the  scope  of  our  work.  It  is  the 
idea  of  transformistic  evolution  "which  alone  interests  us 
here  and  the  import  of  which  it  behooves  us  to  examine. 

I:  Domain  of  Transformistic  Evolution.  According  to 
the  very  principle  of  evolutionism  the  diverse  human 
races  must  spring  from  a  single  type.  But  this  single 
type  might  be  prior  to  humanity,  perhaps  even  very 
long.  The  old  tradition  of  an  Adam  and  an  Eve  peo- 
pling the  earth  with  their  descendants  was  simply  a  sym- 
bol of  human  history;  the  reality  is  more  complex.  Pre- 
historic anthropology  raises  problems  which  it  cannot 
solve  with  any  degree  of  certainty.  Was  the  quaternary 
man  descended  from  the  tertiary  man,  and  have  these 
beings  left  direct  descendants  among  our  modern  races? 
Have  these  modern  races  common  human  ancestors?  Is 
the  brotherhood  of  men  contemporaneous  with  the  birth 
of  men  or  must  it  be  traced  to  the  more  or  less  distant 
precursors  of  man? 

It  is  very  possible,  not  to  say  probable,  that  the  pre- 
cursors of  man  inhabited  diverse  regions  of  the  terrestrial 
globe  without  intermixture  and  even  without  knowing  of 
one  another's  existence,  and  that  they  had  acquired  the 
human  state  independently  of  one  another.  In  this  case, 


598      EVOLUTION,   CHANGE,   PROGRESS    [  CH.  II 

the  original  tendencies  of  each  primitive  race  must  have 
been  extremely  diverse  and,  in  the  course  of  history,  hu- 
manity evolved,  through  intermixture  and  disappearance 
of  certain  groups,  toward  unity  and  not  toward  multiplic- 
ity of  type.  According  to  the  opposite  hypothesis,  which 
may  be  schematically  represented  by  a  single  original 
human  couple,  the  divergences  of  race,  non-existent  in 
the  beginning,  are  the  product  of  life  through  the  passing 
centuries.  Evolution  therefore  would  have  made  the  dif- 
ferentiation and  not  assimilation. 

These  obscurities  upon  the  origins  of  the  physical  man 
are,  it  must  be  confessed,  greatly  to  be  regretted.  The 
slow  formation  of  the  brain  and  the  skull,  the  most  per- 
sistent bases  of  the  moral  and  intellectual  faculties  in  the 
diverse  races,  escapes  us,  and,  accordingly,  transformism 
does  not  supply  everything  concerning  the  origins  and 
history  of  humanity  that  might  be  expected  of  it. 

It  is  easier  to  reestablish  the  psychological  evolution  of 
man  in  its  broad  outlines.  Between  the  most  rudimen- 
tary and  the  most  developed  intelligence  within  the  range 
of  observation,  it  is  possible  to  establish  certain  phases  or 
stages  which  must  have  been  traversed  in  order  to  pass 
from  the  one  to  the  other.  The  power  of  abstraction  is 
one  of  the  best  criterions  of  brain  value.  Under  its  most 
elementary  form,  it  becomes  reduced  solely  to  the  faculty 
of  discerning  certain  resemblances  and  certain  differences 
in  the  concrete  world,  and  this  faculty  is  anterior  to  the 
creation  of  language.  The  power  of  abstraction  is  inti- 
mately connected  with  the  employment  of  the  word  at- 
tached to  the  idea.  It  progresses  with  language,  attain- 
ing with  the  adjective,  the  idea  of  quality  independent  of 
body,  and  with  the  substantive,  the  idea  of  the  individ- 
ual, the  class  and  the  species. 

Through  the  higher  forms  of  abstraction,  man  has  com- 
plete control  over  the  concrete,  analyzes  its  various  ele- 
ments, discovers  the  skeletons  of  beings  and  encloses  in 


§3]  TRANSFORMISTIC  EVOLUTION          599 

general  formulas  an  infinite  number  of  particular  truths. 
Finally,  the  intelligence  arrives  at  a  still  higher  state 
when  it  sets  itself  to  the  criticism  of  its  own  work  of  ab- 
straction, when  it  seeks  to  state  the  exact  relations  be- 
tween this  work  and  reality,  when  it  tries  to  determine 
the  logical  value  —  varying  according  to  circumstances  — 
of  this  work,  the  good  and  evil  of  which  are  easily  mis- 
understood. 

Undoubtedly,  the  human  intelligence  has  in  the  course 
of  generations  passed  through  these  different  stages.  At 
what  moment?  That  is  another  question.  Perhaps  in  a 
prehistoric,  perhaps  in  a  historic  age.  What  was  the 
power  of  abstraction  of  the  brain  of  civilized  man,  three, 
four,  five  or  six  thousand  years  ago?  We  know  nothing 
of  this  at  the  present  time.  Perhaps  there  were  to  be 
found  races  much  better  endowed  in  this  respect  than  are 
many  modern  races. 

In  spite  of  the  numerous  and  splendid  works  to  which 
it  has  given  birth,  psychological  evolution  has  never  been 
treated  from  a  truly  historical  point  of  view.  The  evolu- 
tion of  institutions,  usages  and  manners  has  been  studied 
in  a  more  chronological  fashion.  Information  furnished 
by  old  documents,  by  folk  lore  and  traditions,  permits 
this.  The  earliest  needs  of  a  rising  humanity  have  been 
almost  everywhere  the  same ;  hence,  a  great  uniformity  in 
primitive  institutions.  Since  the  circumstances  of  life  be- 
came diversified  for  each  people,  as  some  lived  by  war 
and  pillage,  others  by  the  raising  of  cattle  which  were 
pastured  over  wide  spaces,  while  other  industries  flour- 
ished in  other  countries,  institutions  likewise  became  di- 
versified, without,  however,  completely  losing  their  orig- 
inal resemblance.  The  universality  of  certain  primitive 
institutions  is  striking.  Is  this  due  to  an  identity  of  evo- 
lution? A  detailed  study  of  history  alone  can  allow  an 
answer  to  this  important  question;  because  currents  of 
imitation  of  one  country  by  others  may  also  have  trans- 


600      EVOLUTION,   CHANGE,   PROGRESS     [  CH.  II 

ported  any  particular  institution  to  very  great  distances. 
In  certain  instances,  identity  of  evolution  without  bor- 
rowing seems  certain;  in  others,  the  question  is  doubtful. 

It  is,  on  the  other  hand,  certain  that  to  these  astonish- 
ing similarities  there  are  opposed  not  less  astonishing  dis- 
similarities between  peoples  of  very  nearly  the  same  de- 
gree of  civilization.  In  the  matter  of  sexual  questions, 
for  example,  men  seem  to  have  invented  at  a  very  early 
date  all  that  it  was  possible  to  invent.  It  may  very  well 
be  that  for  many  institutions  every  imaginable  branch 
has  been  exhausted;  so  that  resemblances  in  the  institu- 
tions of  peoples  at  great  distances  from  one  another,  far 
from  signifying  identity  of  evolution,  might  sometimes 
signify  quite  the  contrary. 

The  evolution  of  technical  Law  is,  beyond  all  possible 
question,  extremely  varied.  Even  peoples  closely  related 
through  race,  customs  and  geographical  situation  have 
very  different  types  of  juridical  logic.  The  formation  of 
the  juridical  technic  of  a  people  is  a  product  of  the  log- 
ical and  the  political  evolution  of  that  people.  It  is  ac- 
cordingly a  very  complex  phenomenon  and  one  that  has 
as  yet  been  little  studied. 

II:  Survivance  and  Archaism.  Certain  philosophers 
give  the  name  survivance  "to  the  reappearance  of  an 
ancestral  characteristic  which  has  disappeared  in  the  in- 
termediate generations."  We  mention  this  terminology 
only  to  avoid  it  and  to  point  out  the  danger  of  ambiguity. 
It  would  be  better  to  call  the  facts  of  atavism  "reviv- 
ance"  than  "survivance."  We  shall  term  " survivances " 
the  vestiges  left  by  a  society  of  an  earlier  type  in  a  soci- 
ety of  a  later  type.  Everything  in  manners,  institutions 
and  law  which  is  explained  by  the  past  and  not  by  the 
present  may  be  considered  as  survivance,  or,  to  be  more 
precise,  everything  which  would  not  be  introduced  just 
as  it  is  in  the  customs,  the  institutions  and  the  law  of  a 
country,  if  it  had  not  already  been  found  there.  A  sur- 


§3]          TRANSFORMISTIC  EVOLUTION  601 

vivance  is  not  therefore  without  use  in  the  present;  in- 
deed, it  may  be  of  even  greater  use  in  the  present  than  it 
was  originally.  But  its  creation  without  the  aid  of  his- 
tory would  be  incomprehensible. 

Let  us  take  the  following  classic  examples:  The  "no- 
bility" of  England  has  been  for  a  long  time  out  of  har- 
mony with  her  democratic  constitution.  It  is  however  an 
essential  organ  of  the  English  colonial  power.  It  would 
be  hard  to  imagine  an  England  as  a  world-power  deprived 
of  all  aristocracy.  In  France,  many  impartial  minds 
think  that  the  political  manners  are  not  in  perfect  accord 
with  the  democratic  ideal  whose  realization  has  been 
attempted  for  a  long  time.  The  authoritarian  idea  does 
not  seem  to  have  died  with  the  Old  Regime.  The  Revo- 
lution broke  the  mirror  in  which  the  features  of  the 
absolute  monarchy  were  reflected.  But  every  piece  of 
the  broken  glass  has  reflected  a  tyrant  of  different  dimen- 
sions, a  small  Louis  XIV,  or  a  small  Caesar,  with  vigorous 
bearing  and  the  authoritative  manner.  No  longer  can 
any  say:  "I  am  the  State,"  but  many  can  say  in  retort: 
"I  am  this  piece  of  the  State."  The  mental  habits  of  the 
absolute  monarch  have  survived  him.  This  is  a  psycho- 
logical survivance.  It  is  not  born  of  institutions  of  the 
present,  but  it  dominates  them.  There  is  certainly  no 
accord  between  philosophical  principles  and  practice.  Is 
it  necessary  that  there  should  be  this  accord  ?  Can  a  very 
great  people  be  truly  democratic  in  its  manners?  Would 
it  not  be  dangerous  suddenly  to  risk  the  experiment?  Is 
it  necessary  to  make  over  everything  new  in  order  to 
establish  between  theory  and  practice  a  harmony  which 
would  disappear  tomorrow? 

Manners  and  the  mental  state  of  a  people  may  be  sur- 
vivances  in  relation  to  its  institutions.  Institutions  may 
be  survivances  in  relation  to  the  general  tendencies  of 
legislation.  Every  law  text  which  would  no  longer  be 
framed  today  as  it  is  framed,  no  longer  corresponds  to  our 


602      EVOLUTION,   CHANGE,   PROGRESS    [  CH.  II 

present-day  mentality  but  to  an  older  mentality.  It  ex- 
presses the  conceptions,  the  manners,  and  the  creative 
logic  of  the  past.  Accordingly,  when  a  law  grows  a  little 
old,  it  becomes  a  survivance.  There  are  very  recent  sur- 
vivances  that  are  very  much  out  of  fashion;  and  others 
that  are  quite  ancient  and  yet  very  much  in  public  favor. 
Besides  their  present  utility  must  be  judged  neither  by 
their  age,  nor  by  the  degree  of  their  popularity  or  their 
unpopularity. 

An  archaism  —  at  least  what  we  shall  call  such  —  is  a 
remnant  of  the  past  having  no  use  in  the  present.  It  has 
preserved  its  characteristics  and  its  original  role;  it  is  a 
psychological,  social  or  institutional  form  which  can  have 
no  "raison  d'etre"  except  in  very  primitive  societies.  Its 
existence  in  an  advanced  civilization  is  an  anomaly.  Cer- 
tain savages  and  certain  criminals  are  archaic  beings;  the 
archaic  being  living  in  our  day  may  be  compared  to  the 
ancestor  of  civilized  man.  On  this  score,  he  is  always  in- 
teresting from  the  historical  point  of  view.  But  it  is  not 
certain  that  he  reproduces  exactly  the  same  traits,  be- 
cause the  archaic  being  living  in  our  day  has  his  personal 
history,  his  own  evolution,  through  which  it  has  been 
possible  for  him  to  acquire  certain  original  traits  which 
would  not  belong  to  the  primitive  type.  " 

Advance  toward  civilization  follows  in  general  a  regu- 
lar order  by  virtue  of  which  a  particular  institution  is 
followed  by  one,  and  preceded  by  another  particular  in- 
stitution. The  clan  is  prior  to  the  city,  the  city  to  the 
state;  private  vengeance  precedes  repression  through  the 
public  authority;  the  matriarchate  is,  in  one  and  the  same 
civilization,  prior  to  the  patriarchate;  and  so  on.  This 
order  in  the  progress  of  institutions  is  regular,  but  not 
necessary.  It  is  reversible  and  interversible.  History 
shows  us  that  a  people  may  very  well  abandon  advanced 
institutions  and  turn  backward  to  adopt  those  that  are 
much  more  primitive. 


§4]  PROGRESSIONAL  EVOLUTION  603 

§  4.  Progressional  Evolution.  There  are  persons  who 
believe  in  progress  and  others  who  do  not  believe  in  it. 
Discussions  in  everyday  conversation  serve  scarcely  more 
as  a  basis  for  a  reasoned  opinion  upon  the  subject  than  do 
political  speeches,  however  unreasonable  it  may  be  to 
make  fun  of  the  one  and  applaud  the  other.  But  it  is  not 
difficult  to  collect  an  abundance  of  much  more  serious 
literature  upon  the  question  of  progress.  Great  philoso- 
phers, numerous  sociologists,  and  thinkers  in  very  diverse 
categories  have  passed  long  days  not  to  say  long  years  in 
studying  the  problem.  There  have  even  been  brilliant 
congresses  employed  entirely  and  solely  in  examining  its 
various  aspects.  Among  those  who  might  have  read  every- 
thing and  heard  everything,  there  would  still  be  found 
people  who  would  believe  in  progress  and  others  who 
would  not  believe  in  it.  Instead  of  giving  a  personal 
opinion,  we  should  try  to  gain  a  clear  understanding  of 
what  may  be  contained  in  these  two  formulas,  "believe 
in  progress"  and  "not  believe  in  progress."  This  labor  is 
in  itself  quite  complex:  it  involves  the  solution  of  three 
groups  of  questions  at  least,  for  it  is  very  possible  that  I 
am  overlooking  some  elements  of  the  problem. 

1.  What   is   the   meaning   of   the   word    "progress"? 
What  may  be  the  logical  nature  of  this  idea  ? 

2.  May  there  exist  a  general  progress  for  humanity  as  a 
whole  or  a  series  of  special  independent  forms  of  progress  ? 

3.  What  are  the  chances  of  the  realization  of  this  prog- 
ress or  these  forms  of  progress? 

I:  Conceptions  of  Progress.  From  the  scientific  point 
of  view,  progress  is  an  increase  of  knowledge  in  a  positive 
discipline.  This  increase  may  be  verified  very  precisely 
for  all  epochs.  It  is  possible  therefore  to  affirm  scientifi- 
cally that  the  physical  and  natural  sciences  have  pro- 
gressed since  a  particular  date.  This  affirmation  does  not 
carry  any  judgment  of  value.  This  increase  of  knowledge 
is  likewise  in  certain  instances,  an  increase  of  power.  This 


604      EVOLUTION,   CHANGE,   PROGRESS   "[  CH.  II 

verification  is  still  in  the  realm  of  positive  logic.  Scien- 
tific progress  thus  understood  is  incontestable.  But  is 
scientific  progress  a  benefit  to  humanity?  Some  naive 
minds  admit  it  without  question  and  can  entertain  there- 
fore the  most  entire  confidence  in  the  future.  They  are, 
moreover,  neither  right,  nor  wrong;  they  state  a  pure 
judgment  of  value  which  requires  justification  or  at  least 
explanation.  It  is  not  false  to  say  "Progress  is  an  ad- 
vance toward  the  best."  Such  a  formula,  without  being 
at  all  scientific,  is  not  void  of  meaning.  It  may  have 
quite  varied  meanings.  There  are  several  conceptions  of 
progress. 

(1)  Conventional  conception.  Suppose  a  certain  num- 
ber of  individuals  placed  in  a  certain  situation  and  capa- 
ble of  imagining  a  series  of  other  situations  which  would 
be  in  their  eyes  more  and  more  desirable.  Finding  them- 
selves in  state  a,  they  all  agree  in  acknowledging  that  b 
is  preferable,  that  c  would  be  still  better  and  so  on  to  z. 
By  agreement,  the  passage  from  a  to  b,  from  b  to  c,  etc., 
would  logically  constitute  a  progress.  The  scale  of  prog- 
ress rests  upon  a  judgment  of  value  common  to  a  certain 
number  of  persons  and  according  to  which  certain  social 
states  are  classed  in  a  certain  order. 

This  conventional  idea  is  not  purely  theoretical  and  in- 
vented for  the  occasion.  It  is,  on  the  contrary,  very 
practical.  Judgments  of  value  are  frequently  held  in 
common  among  all  men  and  serve  unconsciously  as  the 
basis  of  appraisement.  Two  individuals  born  in  the  same 
environment,  subjected  to  the  same  influences  and  of  the 
same  intellectual  capacity  have  a  very  long  scale  of  com- 
mon evaluations  and  nearly  always  agree  in  asserting 
that  a  particular  change  constitutes  or  does  not  constitute 
progress.  Their  accord  with  their  circle  of  friends  and 
acquaintances  convinces  them  that  they  reason  upon  a 
solid  basis,  whereas  their  affirmation  is  purely  conven- 
tional and  arbitrary, 


§4]  PROGRESSIONAL  EVOLUTION  605 

As  a  matter  of  fact,  to  this  scale  of  progress,  there  may 
be  opposed  an  infinite  number  of  other  scales  which  con- 
tradict its  terms  and  possess  exactly  the  same  logical 
value.  For  other  individuals  born  in  another  environ- 
ment, subjected  to  other  influences,  and  being  of  a  differ- 
ent intellectual  capacity,  place  neither  the  good  nor  the 
best  in  the  same  directions  nor  in  the  same  order.  These 
different  conceptions  are  all  equally  justified,  being  all  rela- 
tive and  conventional. 

In  general,  what  is  done  by  tacit  agreement  may  be 
done  by  expressed  agreement.  We  may  agree  to  call 
progress  any  displacement  of  a  body  in  any  particular 
direction,  any  transformation  of  nature  in  any  particular 
way.  It  is  then  possible  to  affirm  that,  being  given  the 
agreement,  a  particular  change  constitutes  or  does  not 
constitute  progress.  But  the  judgment  of  value  which 
might  result  from  this  assertion  has.  no  other  logical 
meaning  than  the  proof  of  an  accord  of  appraisement 
among  certain  individuals. 

(2)  Subjective,  quasi-universal  conception.  Given  any 
being  whatever,  can  it  be  affirmed  that  it  is  a  good  for  it 
to  exist,  an  evil  not  to  exist?  That  it  is  a  good  for  it  to 
have  pleasure,  an  evil  for  it  to  have  pain  ? 

These  two  propositions  may  at  first  sight  appear  true 
with  an  objective  verity  and  aside  from  all  convention, 
by  the  fact  that  all  or  nearly  all  animate  beings  wish  to 
live  and  to  live  happily.  But  it  must  be  remarked  that 
however  elementary,  these  two  truths  are  not  always  in 
agreement  with  one  another,  because,  in  cases  where  exis- 
tence occasions  only  pain,  it  cannot  logically  be  asserted 
either  that  existence  should  be  continued  in  spite  of  the 
pain  or  that  in  order  to  escape  pain,  existence  also  should 
be  escaped.  The  choice  between  the  maximum  of  exis- 
tence and  the  maximum  of  pleasure  or  the  minimum  of 
suffering  can  only  be  an  arbitrary  one.  Now  it  is  easy  to 
prove  that  these  two  conceptions  taken  separately  as  cri- 


606        EVOLUTION,   CHANGE,   PROGRESS  [  CH.  II 

tenons  of  progress  lead  to  very  different  scales  of  evalua- 
tion. The  maximum  of  existence  admits  of  the  maximum 
of  duration  and  the  maximum  of  power.  It  very  often 
involves  incessant  effort,  hardship  and  privation.  The 
maximum  of  enjoyment  admits  of  leisure,  great  expendi- 
ture of  wealth,  and  a  wise  choice  in  the  accumulation  and 
combination  of  pleasures.  "Short  and  sweet,"  says  one. 
"Long,  however  difficult,"  answers  another.  "Let  us  try 
to  reconcile  the  two  as  far  as  possible,"  will  say  a  third 
who  is  perhaps  the  true  sage  in  practical  life,  but  who 
takes  away  from  us  at  one  blow  every  logical  conception  of 
progress  and  substitutes  for  it  vague  personal  impressions. 

Logically,  it  must  be  said  that  for  every  being  there  are 
two  ways  of  progressing  which  are  completely  independ- 
ent of  another  and  must  not  be  confused:  to  increase  in 
existence,  and  to  increase  .in  pleasure.  The  judgments  of 
value  upon  which  these  two  ideas  of  progress  are  grounded 
are  not  purely  conventional  but  are  based  upon  the  al- 
most universal  subjectivity  of  living  beings:  in  the  sense 
that  all  wish  to  live  happily,  but  each  by  his  own  under- 
standing of  how  happiness  is  to  be  extracted  from  life. 

(3)  Metaphysical  conception.  The  transcendence  of  the 
beautiful,  the  good  and  the  just  directs  consciously  or  un- 
consciously the  majority  of  human  evaluations.  Un- 
doubtedly an  attempt  is  very  often  made  to  reduce  these 
three  ideas  to  the  relative,  which  is  logically  equivalent  — 
as  we  have  seen  —  to  annihilating  them.  To  say  that  art 
is  a  question  of  fashion,  morality  a  question  of  habit,  and 
law  a  question  of  politics,  —  to  rob  these  three  disciplines 
of  all  metaphysical  content,  is  logically  to  deny  the  possi- 
bility of  evaluating  things  from  the  view-point  of  the 
beautiful,  the  right,  and  the  just.  Because  between  two 
individuals,  one  of  whom  would  affirm,  and  the  other 
deny  the  superiority  of  one  thing  over  another  from  this 
triple  point  of  view,  it  would  be  entirely  impossible  to  say 
that  one  was  right  and  the  other  wrong. 


§4]  PROGRESSIONAL  EVOLUTION  607 

But  the  transcendental  and  absolute  character  of  the 
three  conceptions  is  only  a  hypothesis  which  will  always 
remain  a  hypothesis  that  no  deduction  nor  experiment 
can  ever  transform  into  positive  data.  By  virtue  of  this 
fact  we  find  ourselves  in  the  domain  of  metaphysics. 
This  domain  is  not  inaccessible  to  human  logic,  because  a 
course  of  hypothetical  reasoning  may  be  conducted  as 
rigorously  as  one  that  is  not  hypothetical.  Nevertheless 
the  formula  corresponding  with  the  abstract  conception 
must  have  been  previously  established.  For  the  beauti- 
ful, this  would  be  difficult,  perhaps  even  impossible.  For 
the  just,  on  the  contrary,  the  "suum  cuique"  furnishes  a 
very  satisfactory  definition. 

Accordingly  we  may  logically  say  that  Law  is  progress- 
ing metaphysically  when  its  diverse  dispositions  draw 
nearer  to  the  "suum  cuique."  This  approach  may  be  sub- 
stantiated with  as  much  certainty  as  is  possible  to  human 
intelligence  upon  any  question  whatever.  But  metaphys- 
ical progress  does  not  signify  general  progress  of  the  Law. 
For  a  legal  system  that  was  progressing  from  the  point  of 
view  of  justice  might  be  moving  backward  as  far  as  its  ef- 
ficacy, its  utility  and  its  technic  were  concerned.  The 
general  progress  of  Law  would  have  to  be  established  by 
a  series  of  particular  forms  of  progress  difficult  to  enumer- 
ate and  still  more  so  to  establish. 

It  would  be  the  same  with  moral  progress.  In  itself 
this  expression  has  no  meaning,  morality  being  not  a 
homogeneous  discipline,  but  one  that  contains  various  and 
sometimes  contradictory  elements.  In  it  metaphysical 
morality  is  opposed  to  ritual  or  social  morality.  Meta- 
physical morality  studies  the  metaphysical  good  which  like 
the  just  admits  of  formulation.  Metaphysical  good  consists 
in  refraining  from  inflicting  the  least  evil  upon  any  living 
being  and  in  securing  for  everyone  the  most  pleasure  pos- 
sible. It  judges  acts  by  the  good  or  the  evil  that  they 
may  occasion  or  that  they  are  destined  to  accomplish. 


608      EVOLUTION,   CHANGE,   PROGRESS    [CH.  II 

Social  or  ritual  morality  binds  individuals  to  conform 
to  certain  usages  outwardly  approved  by  the  society  in 
which  they  live.  It  is  a  product  of  collective  thought  as 
we  have  interpreted  it.  Every  method  of  grouping  needs 
some  form  of  morality  to  maintain  it  as  it  exists;  accord- 
ingly the  same  individual  who  belongs  to  several  groups 
will  have  several,  sometimes  contradictory,  moral  codes. 
Suppose  a  member  of  parliament  belongs  to  a  club 
where  gambling  is'  indulged  in.  In  so  far  as  he  is  a 
member  of  parliament,  he  will  refuse  to  sanction  the 
debt  incurred  as  being  of  an  immoral  origin;  in  so  far 
as  he  is  a  member  of  the  club,  he  will  sanction  to  the 
extreme  the  means  of  assuring  its  payment.  Along 
with  official  social  moral  codes,  there  always  exist 
non-official  moral  codes  which  are  often  violently  com- 
bated by  the  State.  To  simplify  matters,  let  us  speak 
only  of  official  social  morality  as  opposed  to  meta- 
physical morality. 

It  is  impossible  for  the  two  forms  to  be  always  in  per- 
fect accord.  Resting  upon  different  foundations,  they 
may  quite  as  well  disagree  as  agree.  Their  rivalry  is  in- 
deed of  very  great  interest  in  the  understanding  of  his- 
tory. Very  often  there  have  been  seen  to  arise  great 
hearts  and  great  minds  which  have  had  a  very  marked 
preference  for  metaphysical  morality.  The  New  Testa- 
ment especially  constitutes  the  greatest  effort  to  bring 
about  the  preponderance  of  abstract  goodness  over  the 
social  conceptions  of  the  moment.  Christ  declares  many 
times  that  the  importance  of  social  crimes  —  failure  to  ob- 
serve the  Sabbath,  the  woman's  adultery  —  has  been  con- 
siderably exaggerated;  above  everything  he  puts  the  law 
of  charity  which  through  love  of  one's  neighbor  leads  to 
metaphysical  good:  to  avoid  inflicting  suffering  upon  an- 
other and  procure  for  him  as  much  happiness  as  possible. 
But  when  Christianity  took  charge  of  the  organization  of 
society,  it  restored  to  the  ritual  morality,  predominant  in 


§4]  PROGRESSIONAL  EVOLUTION  609 

the  Bible,  all  its  former  sternness.  This  is  the  history  of 
many  religious  movements. 

Ritual  morality  is  an  organizing  force  and  is  justified 
by  its  utility.  All  reflection,  all  heart-felt  emotion  is  of  a 
nature  to  destroy  its  authority.  It  can  only  be  main- 
tained by  custom  and  by  violence.  Wherein  lies  the  truth 
of  Durkheim's  fine  reflection  upon  the  function  of  punish- 
ment: its  object  is  above  all  else  to  maintain  social  mo- 
rality. Certain  acts  are  odious  only  because  they  are  se- 
verely punished  by  law  or  general  disapprobation,  which 
is  nearly  always  a  material  as  well  as  a  moral  penalty. 
To  him  who  attacks  with  logic  the  rite  of  the  moment 
and  says  to  social  morality,  "Strike,  but  listen!"  it  may 
only  answer,  "I  strike,  but  will  not  listen!"  For  if  the 
violator  of  a  rite  succeeds  in  making  himself  heard  —  which 
happens  sooner  or  later  —  the  rite  is  condemned,  the  soci- 
ety disorganized  for  some  time.  A  new  rite  must  be  es- 
tablished which  will  hold  sway  until  some  energetic  icono- 
clast comes  to  destroy  it  in  its  turn. 

Instinctively,  societies  show  themselves  infinitely  more 
severe  in  the  repression  of  ritual  crimes  than  in  the  viola- 
tion of  metaphysical  morality.  Faults  which  occasion  no 
harm  to  anyone  are  punished  much  more  severely  than 
those  which  do.  A  short  time  ago  a  clever  chronicler  was 
astonished  to  see  a  soldier  acquitted,  who  had  shot  his 
fiancee  and  her  parents,  while  on  the  same  day  and 
under  the  same  conditions,  another  soldier  was  severely 
condemned  for  bigamy.  And  the  chronicler  concludes, 
"This  is  perhaps  very  social,  and  very  moral,  but  it  is 
not  perhaps  very  human."  Not  human!  But  it  is  a 
great  part  of  the  history  of  humanity.  As  all  rites  are  of 
equal  value,  the  substitution  of  one  ritual  morality  for 
another  ritual  morality  could  not  constitute  progress. 
Metaphysical  morality  alone  is  capable  of  progress.  Ac- 
cordingly, just  as  it  is  impossible  to  affirm  that  Law  as  a 
whole  is  progressing  by  approaching  the  just,  so  is  it  im- 


610      EVOLUTION,   CHANGE,   PROGRESS    [  CH.  II 

possible  to  affirm  that  morality  as  a  whole  is  progressing 
by  approaching  the  Good. 

(4)  Rational  conception.  The  logical  examination  of 
social  conceptions  ought  not  to  serve  to  condemn  the  un- 
derstanding of  them  from  a  rational  point  of  view.  The 
rational  cannot  serve  as  a  basis  for  the  philosophic  inter- 
pretation of  law  or  of  history,  but  in  everyday  practical 
life,  it  plays  the  largest  part.  There  is  no  necessity  to 
make  any  unjustified  claims  for  the  rational ;  but  there  is 
a  necessity  to  recognize  the  importance  of  its  role  in  ex- 
istence. The  rational  conception  of  progress  is  formed 
by  the  juxtaposition  of  the  three  other  conceptions,  the 
conventional,  the  subjective  and  the  metaphysical.  This 
juxtaposition  is  not  justified  in  logic,  but  is  in  practice. 

Since  each  man  pursues  only  limited  objects  and  those 
that  are  brought  to  his  notice  by  his  environment  and  his 
associates,  he  may  easily  recognize  that  his  objects  are 
purely  relative  and  conventional.  Two  persons  playing 
at  cards  with  nothing  at  stake,  do  not  see  their  situation 
changed  by  the  color  of  the  cards  they  hold  in  their 
hands;  for  every  point  that  they  mark  on  their  score, 
they  believe  they  are  making  some  progress.  Players  for 
whom  the  stake  is  purely  imaginary  are  numerous  in  this 
world,  and  they  are  not  the  least  passionate;  but  their 
conception  of  progress  is  entirely  conventional.  Never- 
theless every  one  makes  earnest  efforts  to  produce  changes 
in  his  situation  in  the  hope  that  these  changes  will  bring 
with  them  more  power  or  more  happiness  to  him  and  his. 
If  he  succeeds,  he  considers  that  he  is  progressing  in  the 
second  meaning  of  the  word.  Finally,  every  time  that  a 
just  solution  comes  to  replace  an  unjust  solution,  or  a 
cause  of  suffering  disappears  and  a  cause  of  joy  or  of  hap- 
piness is  produced,  the  public  at  large  will  call  this  pro- 
gress also,  but  in  the  metaphysical  meaning  of  the  word. 

Merging  these  different  conceptions  into  one  single  con- 
ception, good  common  sense  constructs  from  it  an  ab- 


§4]  PROGRESSIONAL  EVOLUTION  611 

straction  endowed  with  very  great  prestige,  a  sort  of  di- 
vinity which  it  follows  everywhere  that  it  thinks  it  sees  it 
go.  This  is  sometimes  fortunate  for  it;  sometimes  unfor- 
tunate. But  faith  is  in  itself  a  recompense. 

II:  General  or  Special  Progress.  There  is  therefore  in 
the  popular  conception  of  progress  a  prime  defect.  It 
confuses  the  scientifically  and  the  conventionally  best,  the 
general  and  metaphysical  subjectivity,  conceptions  of  es- 
sentially different  nature  and  totally  independent  of  one 
another.  This  is  not  all.  Suppose  that  there  is  a  "  best " 
in  a  single,  precise  and  logically  definable  sense.  Will  it 
be  possible  by  comparing  two  periods  of  one  and  the  same 
civilization  to  affirm  "There  is  progress  here"  or  "There 
is  no  progress  here"?  And  what  would  have  to  be  done 
in  order  to  make  such  an  assertion? 

1.  First  hypothesis.    All  the  elements  of  civilization  of 
the  second  period  placed  side  by  side  and  judged  by  the 
criterion  of  the  best  are  found  to  be  superior  to  the  corre- 
sponding elements  of  the  first  period.    In  this  case  it  will 
be  legitimate  to  affirm  that  there  is  general  progress.    Un- 
fortunately, there  is  very  little  chance  for  this  hypothesis 
to  be  realized  even  once.     It  is  almost  certain  that  it 
will  not  always  be  realized.    It  is  entirely  certain  that  it 
has  never  yet  been  realized  in  historical  periods. 

2.  Second  hypothesis.     The  comparison  results  in  the 
revelation  of  certain  superiorities  and  certain  inferiorities 
in  both  of  the  two  periods.    Is  it  legitimate  to  establish  a 
sort  of  average  and  give  its  resultant  as  a  proof  of  prog- 
ress or  of  retrogression?    Thus:  the  first  period  is  su- 
perior in  ten  points,  in  morality,  in  hygiene,  and  so  on; 
the  second  outstrips  the  first  in  twenty  points,  in  artistic 
creation,  in  wealth,  and  so  on;  and  the  total  of  the  two 
additions  shows  an  advance  of  ten  points  to  the  advan- 
tage of  the  more  recent  state.    Can  it  be  declared  from 
these  facts   that   there  has  been  progress?     Evidently 
nothing  could  prevent  a  person  from  amusing  himself  by 


612      EVOLUTION,  CHANGE,  PROGRESS    [CH.II 

making  such  calculations;  there  would  be  no  sense  in  his 
doing  so,  however,  because  he  would  have  combined  in 
one  and  the  same  arithmetical  operation  objects  of  a  dif- 
ferent nature  and  those  which  do  not  admit  of  compari- 
son with  one  another.  Accordingly,  as  it  has  been  very 
well  said,  although  there  may  be  progress  as  regards  each 
of  the  elements  of  civilization,  there  cannot  be  any  prog- 
ress as  a  whole  and  in  general  for  humanity  or  a  portion 
of  humanity. 

There  are  therefore  only  special  forms  of  progress  which 
are  independent  of  and  very  often  even  opposed  to  one 
another.  This  specialization  should  even  be  pushed  quite 
far.  Thus  to  say  that  one  legal  system  is  progressing  more 
than  another  has  no  meaning;  for  law  is  composed  of  dis- 
parate elements;  it  may  progress  in  technic  and  retro- 
grade as  regards  the  idea  of  justice,  morality,  practical 
utility,  or  other  things.  One  juridical  technic  can 'only 
be  compared  with  another  technic,  and  each  of  the  other 
elements  to  other  corresponding  elements  and  those  of 
the  same  nature.  Otherwise  all  comparison  would  be 
devoid  of  any  logical  significance. 

Ill:  Chances  of  Realization  of  the  Various  Forms  of 
Progress  and  the  Destinies  of  Humanity.  Two  extreme 
and,  in  a  sense,  contrary  opinions  should  first  of  all  be 
eliminated:  namely,  the  necessity  of  progress  and  the 
impossibility  of  progress.  It  is  evident  in  our  present 
state  of  knowledge  that  no  progress  is  certainly  and  nec- 
essarily to  be  realized  in  any  element  of  human  civiliza- 
tion and  still  less  in  its  whole.  It  is  also  quite  evident 
that  in  every  element  of  civilization  progress  is  possible. 
The  necessity  or  the  impossibility  of  progress  are  both 
refuted  by  the  fact  already  established  that  all  laws  of 
realization  are  non-existent  or  inaccessible  to  human  in- 
telligence. 

What  will  the  humanity  of  tomorrow  be?  No  science 
can  give  a  certain  answer;  only  probabilities  at  best.  It 


§4]  PROGRESSIONAL  EVOLUTION  613 

is  beautiful  and  reassuring  to  see  an  orator  in  a  burst  of 
eloquence  pin  his  faith,  with  as  much  enthusiasm  as  Dem- 
osthenes did  to  the  heroes  of  Marathon,  to  the  immortal- 
ity of  some  particular  human  conception  and  its  prepon- 
derance in  the  future.  Hard  reality  does  not  allow  con- 
ceptions to  live  when  brains  cease  to  live.  It  does  not 
bestow  upon  all  human  brains  the  same  intellectual 
power.  Whether  it  is  a  question  of  practical  life,  of  sci- 
ence, of  art,  of  philosophy,  or  of  law,  the  cerebral  physi- 
ology is  at  the  bottom  of  everything.  Brain  combina- 
tions which  are  being  formed  at  the  present  time  by  a 
mixture  of  blood  are  the  foundations  of  the  future  of  hu- 
manity, and  we  do  not  know  what  these  combinations  are. 
perhaps  they  will  be  fortunate  for  this  or  that  discipline ; 
perhaps  for  all  disciplines;  perhaps  for  none.  The  various 
factors  in  the  development  of  peoples  taken  each  in  its 
turn  would  not  admit  of  any  application  whatever  of  the 
two  extreme  theses,  — -  the  necessity  and  the  impossibility 
of  progress. 

Therefore  every  human  discipline  can  advance  and  can 
retrograde.  The  chances  of  advance  and  those  of  retro- 
gression are  incalculable.  But  among  human  disciplines, 
there  are  those  which  have  many  chances  to  progress  and 
to  progress  rapidly;  others,  on  the  contrary,  have  few 
chances  to  progress  and  that  very  slowly.  Human  knowl- 
edge moves  forward  at  a  very  fine  pace  when  its  results 
can  be  recorded;  its  successes  are  ephemeral  and  with  no 
tomorrow,  when  such  results  cannot  be  recorded. 

The  results  of  any  intellectual  labor  are  recorded,  that 
is  to  say,  become  an  acquisition  to  civilization  and  hu- 
manity, in  proportion  to  the  number  of  persons  who  can 
appropriate  them  to  their  purposes  and  use  them  imme- 
diately. The  more  the  intellectual  effort  necessary  in  the 
utilization  of  an  invention  is  reduced,  the  better  it  is  re- 
corded and  preserved  in  the  human  species,  the  better  it 
is  protected  from  any  risk  of  deterioration  or  disappear- 


614      EVOLUTION,   CHANGE,   PROGRESS    [  CH.  II 

ance.  Accordingly  a  science  progresses  in  proportion  to 
the  intellectual  distance  between  the  inventor  and  the 
assimilator.  Between  the  intellectual  effort  necessary  to 
the  invention  of  wireless  telegraphy  and  the  intellectual 
effort  necessary  to  use  it,  there  is  a  tremendous  abyss. 
Humanity  might  fall  very  low,  while  still  continuing  to 
make  practical  application  of  all  the  modern  inventions. 

Certain  intellectual  efforts  do  not  record  their  results; 
that  is  to  say,  they  serve  little  or  no  purpose,  because  the 
intellectual  distance  between  the  creator  and  the  assimi- 
lator may  be  but  slight.  In  all  these  disciplines,  to  un- 
derstand is  to  be  equal.  And  he  who  can  be  equal  will 
not  pass  his  life  in  understanding.  To  understand  Plato 
rightly,  one  would  have  to  be  equal  to  Plato ;  and  he  who 
would  be  equal  to  Plato  would  not  resign  himself  to  pass- 
ing his  life  in  understanding  him.  He  would  produce 
something  else,  some  new  creation  which  would,  in  its 
turn,  never  be  completely  understood.  Phidias,  Ictinus, 
and  Callicrates  never  handed  down  to  any  one  the  recipe 
for  making  a  Parthenon.  Architects  may  study  it  for 
centuries  in  its  smallest  details  to  no  advantage.  In  law, 
old  jurists  are  quickly  forgotten;  the  greatest  intellectual 
efforts  often  remain  unknown;  with  each  generation, 
everything  passes  away,  the  good  with  the  bad. 

Nearly  all  of  the  purely  intellectual  disciplines  are  sub- 
ject to  these  rapid  collapses  when  the  general  level  of  in- 
telligence is  lowered  to  even  a  slight  extent.  Further- 
more, those  who  live  in  such  periods  do  not  notice  them. 
Only  the  historians  of  a  new  civilization  can  establish 
these  rapid  declines  following  upon  periods  of  the  great- 
est brilliance  and  those  from  which  the  greatest  results 
were  to  be  expected.  Unfortunately,  the  disciplines  which 
have  the  best  chance  to  record  their  progress  and  to  be 
developed  more  and  more  rapidly,  are  no  longer  indis- 
pensable to  humanity  and  are  perhaps  more  harmful  than 
Otherwise.  Humanity's  old  struggle  against  nature  is 


§5]     METAPHYSICAL  GENERALIZATIONS      615 

ended  long  ago.  Man  now  has  scarcely  an  enemy  except 
himself  and  what  he  has  himself  created;  but  even  this 
amounts  to  a  good  deal.  It  would  be  very  desirable 
for  the  intellectual  disciplines  to  advance  at  the  same 
pace  as  do  those  of  practical  scientific  value.  This  is  per- 
haps possible  but  not  certain. 

§  5.  Metaphysical  Generalizations  upon  Evolution  and 
History.  It  might  be  very  possible  that  all  the  factors  of 
history  that  observation  and  human  logic  allow  us  to  de- 
rive, have  only  a  purely  seeming  influence  upon  histor- 
ical evolution,  and  that  the  true  cause,  the  superior  force, 
is  entirely  unknown  to  us,  perhaps  even  beyond  the 
reach  of  our  understanding.  This  hypothesis  should  not 
be  considered  unreasonable  in  itself.  In  this  case,  the  in- 
tellect would  remain  powerless  to  penetrate  the  secrets  of 
history;  the  imagination  alone  might  strive  to  do  so  in  a 
more  or  less  vague  fashion. 

I :  Search  for  the  Hidden  Plan  of  the  Universe.  A  great 
many  theories  upon  the  philosophy  of  history  have  as 
their  object  "to  discover  the  hidden  plan  of  the  uni- 
verse." This  plan  being  hidden  to  logical  investigation, 
it  can  be  divined  only  by  invention,  and  however  in- 
genious the  invention,  it  could  give  to  its  work  no  char- 
acter of  certainty  nor  even  of  probability.  This  work  will 
always  remain  metaphysical  and  constructive;  it  will  al- 
ways remain  an  arbitrary  assemblage  of  hypothetical 
data  which  gives  a  more  or  less  pleasing  and  harmonious 
glimpse  of  the  universe,  without  this  harmony's  being 
able  to  confer  upon  it  any  character  of  reality  or  of  prob- 
ability. It  is  a  "Weltanschauung"  and  all  "Weltan- 
schauungen"  have  the  same  authority  in  the  eyes  of  the 
intellect. 

It  is  not  that  these  metaphysical  constructions  are  use- 
less or  worthy  of  scorn.  Far  from  it.  Minds  of  the  widest 
reach  have  devoted  their  most  earnest  efforts  to  interpret- 
ing the  course  of  history  by  means  of  metaphysical  con- 


616      EVOLUTION,   CHANGE,   PROGRESS    [  CH.  II 

ceptions,  and,  in  doing  this,  they  have  not  been  misled. 
Metaphysical  constructions  have  at  least  this  double  use ; 
(a)  Like  every  generalization,  they  present  events  under 
a  synthetic  and  more  easily  comprehensible  form.  They 
prevent  the  mind  from  losing  itself  in  details.  They  aug- 
ment the  interest  of  the  particular  by  making  it  unroll 
general  ideas,  and,  up  to  a  certain  point,  permit  them- 
selves to  be  rediscovered  by  means  of  deduction,  in  the 
realm  of  the  concrete.  Such  is  also  the  function  of  the 
juridical  construction. 

(b)  From  the  philosophical  point  of  view,  they  throw 
into  relief  all  the  enigmas  concealed  behind  the  most 
positive  ideas.  They  show  how  man  and  his  puny  logic 
are  overwhelmed  in  the  immensity  of  the  universe;  they 
impel  him  to  be  modest,  even  with  regard  to  truths  that 
he  believes  the  most  certain. 

The  great  danger  for  all  of  those  who  possess  a  "Welt- 
anschauung" is  to  attribute  to  it  a  positive  and  objective 
value.  The  philosopher  Iselin  gives  to  his  speculations 
upon  the  philosophy  of  history,  the  title  "  Philosophische 
Mutmassungen  uber  die  Geschichte  des  Menscheit," 
Philosophical  Conjectures  upon  the  History  of  Human- 
ity. The  expression  "Mutmassungen"  is  perfectly 
accurate  and  indicates  wonderfully  well  the  scope  of 
such  works. 

II :  Theistic  Systems  and  Pantheistic  Systems.  We  have 
no  intention  of  discussing  nor  even  of  citing  the  numerous 
systems  of  metaphysical  interpretation  of  the  world  and 
of  history.  We  may  however  be  permitted  to  contrast 
the  theistic  and  the  pantheistic  systems. 

Theistic  systems  enlarge  upon  the  well-known  adage 
"Man  proposes  and  God  disposes."  A  God  all  powerful, 
eternal,  eternally  perfect,  directs  the  history  of  the  world 
and  human  destinies.  Man  made  in  the  image  of  God 
can  understand  His  qualities  and  His  will  and  by  that 
very  means  know  even  the  directions  of  progress. 


§5]     METAPHYSICAL  GENERALIZATIONS      617 

Pantheists  reject  this  theory  as  antiquated  and  anthro~ 
pocentric.  For  them,  God  is  the  world  itself.  It  is  self- 
created  in  the  course  of  history  and  self-directed  toward 
perfection.  All  its  elements  are  at  one  and  the  same  time 
nature  and  spirit,  and  all  participate  in  the  universal 
wisdom. 

The  two  systems  are  equally  justified  and  equally  arbi- 
trary. Every  human  intelligence  which  attempts  to  re- 
flect upon  the  divinity  is  obliged  to  choose  between  the 
two  alternatives.  If  a  person  tries  to  gain  a  clear  idea  of 
divinity,  he  is  always  more  or  less  compelled  to  deify 
himself,  to  attribute  to  the  supreme  Being,  his  thoughts, 
his  sentiments  and  his  own  way  of  willing  and  acting. 
His  God  will  then  be  simply  a  creation  of  his  brain,  a 
purely  anthropomorphic  being  whose  existence  such  as 
he  conceives  it  is  indeed  scarcely  probable. 

He  who  tries,  on  the  other  hand,  to  escape  the  reproach 
of  anthropomorphism,  strives  to  remove  every  human  at- 
tribute from  the  divine  personality.  But  with  the  disap- 
pearance of  each  human  attribute,  the  figure  grows  paler ; 
it  gradually  becomes  effaced  and  ends  in  nothingness.  It 
is  only  through  an  old  habit  of  speech  that  any  superior- 
ity whatever  is  preserved  to  this  non-existing  being. 
Man  cannot  worship  what  he  is  ignorant  of.  That  is 
why  the  "perfection,"  the  "progress,"  and  the  "future" 
of  the  pantheists  and,  accordingly,  their  historical  con- 
structions, are  of  no  interest.  Hegel's  "Thought"  had  in 
it  something  human  and  hence  comprehensible.  The 
"unconscious  thought"  of  the  new  Hegelians  which  is 
common  to  the  universe  as  a  whole  is  perhaps  nearer  the 
truth.  But  it  no  longer  means  anything  to  us;  and  one 
can  hardly  see  what  interest  can  be  taken  in  toiling  over 
a  self-development  which  may,  quite  as  well  as  not,  end 
by  becoming  absorbed  into  the  universal  nothingness. 

Bergson's  creative  evolution  is,  from  certain  aspects, 
metaphysical  construction,  and  from  certain  other  as- 


618      EVOLUTION,   CHANGE,   PROGRESS    [Cn.II 

pects,  logical  construction.  The  substitution  of  "intui- 
tion" for  intelligence  as  a  mode  of  knowledge  runs  the 
risk  of  reversing  the  scale  of  intellectuality  and  of  placing 
the  inferior  above  the  superior  modes  of  thought.  The 
"elan  de  vie,"  the  creative  force  which  directs  history,  is  a 
mysterious  and  hypothetical  conception. 

On  the  other  hand,  Bergson  approaches  positive  logic 
in  this  sense,  that  the  evolution  created  by  life  is  for  him 
contingent,  is  not  predetermined,  and  that,  according  to 
his  ideas,  there  is,  it  seems,  no  plan  of  the  universe  com- 
prehensible to  man,  nor  any  in  whose  ultimate  result  man 
could  be  interested. 

Finally,  the  Spencerian  progress  in  spite  of  its  claims 
to  positivism  has  only  a  constructive  value,  which  asser- 
tion could  easily  be  established  if  we  had  the  time  to 
take  up  the  criticisms  which  have  been  leveled  at  it. 
That  does  not  do  away  with  its  interest,  however. 

BIBLIOGRAPHY 

BERTHELOT,  Evolutionnisme  et  Platonisme  (1908);  BASTIAN, 
L'evolution  de  la  vie  (1908);  DEMOOR,  MASSARD,  VANDERWELDE, 
L'evolution  regressive  en  biologic  et  en  sociologie;  DICRAN  As- 
LANIAN,  Les  Principes  de  1'evolution  sociale;  LE  BON,  Lois  psycho- 
logiques  de  1'evolution  des  peuples;  LE  DANTEC,  Evolution  indi- 
viduelle  et  heredite;  G.  DE  MOLINARI,  Thebrie  de  1'evolution; 
MATTEUZI,  Les  facteurs  de  1'evolution  des  peuples;  SECOND,  Cournot 
et  la  psychologic  vitaliste;  CARRAU,  L'humanite  primitive  et  1'evo- 
lution sociale  d'apres  H.  SPENCER. 

KIDD,  Social  Evolution  (French  trans,  by  LE  MONNIER);  LOCK- 
YER,  Inorganic  Evolution  (French  trans,  by  E.  D'HOOGHE,  1905); 
HUXLEY,  Evolution  and  Ethics;  BALDWIN,  Development  and  Evo- 
lution. 

WIRTH,  Der  Gang  der  Weltgeschichte  (1913);  SPRANGER,  Grund- 
lagen  der  Geschichtswissenschaft;  Wilhem  von  Humbold  und  die 
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schichte; UNOLD,  Organische  und  soziale  Lebensgesetze;  MEYER,  Zur 
Theorie  und  Methodik  der  Geschichte;  MULLER-LEYER,  Phasen  der 


§5J     METAPHYSICAL  GENERALIZATIONS      619 

Kultur;  A.  VON  SCHWEIGER-LERCHENFELD,  Kulturgeschichte,  Wer- 
den  u.  Vergehen  im  Vblkerleben. 

FREEMAN,  The  Historical  Method;  FRED  MARRISON,  The  His- 
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RIBOT,  L'evolution  des  idees  generates;  FOUILLEE,  L'evolution- 
nisme  des  idees-forces;  HALLEUX,  L'hypothese  evolutioniste  en 
morae;  COSENTINI,  La  sociologie  genetique,  Introd.  by  MAX. 
KOVALEVSKY  (good  bibliography). 

MENDELSOHN,  Jerusalem  oder  uber  religiose  Macht  und  Judentum 
(Berlin,  1783);  A.  FERRIERE,  La  loi  du  progres  (1915);  an  excel- 
lent study  of  progress  according  to  Spencerian  ideas  and  a  very  good 
bibliography  in  this  respect;  FLINT,  The  Philosophy  of  History  in 
Germany  (French  trans,  by  CARRAU). 

BERGSON,  L'evolution  creatrice;  GRAND  JEAN,  Une  revolution  dans 
la  philosophic;  BENDA,  Le  Bergsonisme,  une  philosophic  de  la  mobi- 
lite;  BERGSON,  L'in tuition  philosophique,  in  International  Congress 
at  Bologna  (1911). 

KOHLER,  Moderne  Rechtsprobleme;  COGLIOLO,  Essai  sur  revo- 
lution du  Droit  prive1;  NEUKAMP,  Das  Entwicklungsgesetz  der 
fortschreitenden  Vergeistigung  des  Rechts,  Einleitung  in  eine  Ent- 
wicklungsgeschichte  des  Rechts;  BENEDETTO  CROCE,  What  is 
Living  and  What  is  Dead  in  the  Philosophy  of  Hegel  (French  trans. 
by  BURJOL). 


CHAPTER  III 
CHANCE 

§1.  INTRODUCTION.  — §2.  THE  IDEA  OF  CHANCE:  (I)  SUB- 
JECTIVE  OR  OBJECTIVE;  (II)  COMPLETE  AND  INCOMPLETE;  (III) 
FREQUENCY  AND  SUCCESSION;  (IV)  CROSSING.  — §  3.  CHANCE  AND 
STATISTICS. —  §  4.  POSSIBILITIES  IN  HISTORY.  — §  5.  CHANCE  AND 
LEGAL  HISTORY. 

§  1.  Introduction.  In  the  history  of  Law  and  of  civili- 
zation a  large  place  should  be  assigned  to  Chance.  Such 
is  the  solution  that  the  multiplicity  of  factors,  the  impos- 
sibility of  calculating  their  respective  forces,  and  the  non- 
existence  of  laws  of  realization,  imposes  upon  whoever 
wishes  to  delude  neither  himself  nor  another. 

Moreover  this  invoking  of  chance  is  not  purely  a  con- 
venient process  of  getting  rid  of  the  difficulties  of  calcula- 
tion. Instead  of  simplifying  matters,  the  intervention  of 
chance  singularly  complicates  them.  For  rt  would  be 
saying  nothing  at  all  to  hurl  forth  this  word  without  at- 
tempting to  point  out  its  significance.  This  task  brings 
us  in  touch  with  very  brilliant  and  very  profound  liter- 
ary works  in  which  are  encountered  a  great  many  men  of 
the  highest  order  of  genius,  all  quite  familiar  with  mathe- 
matics and  often  even  mathematicians  of  the  first  rank. 
We  have  no  intention,  understand,  of  following  them  into 
the  complexities  of  the  "theory  of  probabilities."  A  very 
elementary  conception  of  chance  would  suffice  us,  one 
which  would  enable  us  to  gain  a  vague  understanding  of 
its  philosophical  nature.  But  all  this  literature,  rich,  full 
of  imagery  and  clear  in  form,  leaves  one  much  perplexed, 
because  the  mathematicians  who  understand  chance  most 
thoroughly,  on  account  of  having  studied  it  most  thor- 

620 


§2]  IDEA  OP  CHANCE  621 

oughly,  are  far  from  agreeing  upon  its  most  essential  char- 
acteristics, and  it  is  very  bold  to  try  to  make  a  choice 
among  authorities  of  the  first  order.  Some  decision,  how- 
ever, must  be  made  in  the  matter  in  order  to  arrive  at 
any  conclusion. 

§  2.  Idea  of  Chance.  Every  phenomenon  the  reali- 
zation of  which  cannot  be  proved  with  certainty  by 
means  of  its  antecedents  is  for  us  the  product  of  chance. 
This  definition  would  not  be  that  of  a  mathematician. 
The  historical  conception  of  chance  is  different  from  the 
mathematical  conception.  There  is  therefore  a  historical 
chance  and  a  mathematical  chance.  The  first  is  more 
complex,  more  disparate,  but  in  default  of  the  power  to 
analyze  it  into  its  elements,  one  is  obliged  to  take  it  as  it 
is.  Nevertheless  the  point  in  question  is  to  understand 
the  nature  of  this  chance. 

I :  Subjectivity  or  Objectivity  of  Chance.  History  cannot 
be  foreseen,  or  only  imperfectly  so,  for  two  reasons.  In 
the  first  place,  we  do  not  know  all  of  its  laws  —  I 
mean  all  hypothetical  laws,  all  relations  between  things. 
And,  if  we  did  know  them,  it  would  be  impossible  to  cal- 
culate their  chances  of  realization,  in  view  of  their  entan- 
glement and  their  complexity.  We  should  be  like  the 
gambler  at  the  roulette  board.  The  historical  unforesee- 
able is  composed  therefore  of  two  elements.  It  is  impos- 
sible to  take  into  consideration  either  the  one  or  the 
other  since  we  can  know  only  the  result,  as  a  whole;  but 
the  two  elements  are  of  a  very  different  nature. 

Ignorance  of  laws  is  purely  subjective;  it  varies  with 
the  times  and  with  the  individual.  Logically  it  might 
disappear  with  the  advance  of  science.  The  determinate 
part  of  history  would  then  be  increased  and  the  indeter- 
minate or  fortuitous  part  reduced  to  a  secondary  place. 
The  part  of  history  which  can  be  determined  is  not  sub- 
ject to  what  mathematicians  call  laws  of  chance  or  cal- 
culus of  probabilities. 


622  CHANCE  [  CH.  Ill 

Mathematical  chance  is  objective;  it  is  inherent  in  the 
nature  of  certain  phenomena  and  not  in  the  state  of 
human  knowledge.  It  exists  in  the  same  way  for  all  men. 
For  an  omniscient  intelligence,  chance  would  not  be  ig- 
norance, but  a  law  to  whose  authority  this  intelligence 
might  have  to  submit.  Some  one  has  imagined  a  god 
throwing  dice  with  a  simple  mortal.  The  god  might  know 
the  results  of  the  game  before  playing  it,  but  he  might 
lose  provided  the  mortal  threw  the  dice  and  the  god  was 
obliged  to  accept  the  mortal's  wager  without  laying  a 
wager  himself.  Between  gods,  chance  would  exist,  not 
negatively  as  ignorance,  but  positively  as  knowledge.  A 
perfectly  symmetrical  coin,  a  perfectly  cubical  die  of 
homogeneous  material,  and  a  well  constructed  roulette 
board  lend  themselves  to  games  of  chance,  and  are  all  the 
better  adapted  to  expressing  the  calculus  of  probabilities 
to  the  extent  that  their  dimensions  are  accurately  com- 
bined. With  loaded  dice  and  a  falsified  roulette,  even  if 
the  players  are  ignorant  of  these  defects,  the  indetermi- 
nation  of  possible  solutions,  or  the  equality  of  chances, 
does  not  exist  and  the  game  is  not  fair.  Accordingly,  the 
situations  in  which  certain  solutions  are  equally  possible, 
and  therefore  indeterminate,  are  entirely  independent  of 
human  knowledge  and  hence  objective.  But  is  it  possible 
to  understand  logically  and  scientifically  how,  from  any 
given  cause,  a  certain  number  of  effects  have  equal 
chances  of  being  produced?  That  is  in  no  way  contrary 
to  universal  determinism.  Poincare,  among  others,  has 
demonstrated  this  very  clearly,  but  we  consider  it  needless 
to  state  his  proof  here.  Since  a  series  of  small  and  closely 
related  causes  may  each  produce  very  different  effects, 
the  cause  being  trifling  in  proportion  to  the  effect,  the 
phenomenon  is  relatively  indeterminate.  It  must  be  ob- 
served that  this  disproportion  between  the  magnitude  of 
the  effect  and  the  slightness  of  the  cause  may  be  artificial 
as  well  as  natural.  The  difference  between  a  certain  im- 


§2]  IDEA  OF  CHANCE  623 

pelling  force  capable  of  making  red  come  from  the  roulette 
and  another  impelling  force  capable  of  making  black  come 
out  is  infinitesimal.  This  is  the  cause.  But  the  physical 
effect,  the  position  of  the  ball  upon  the  board  at  the 
moment  it  is  arrested,  is  also  infinitesimal.  The  agree- 
ment of  the  players,  which  makes  the  gain  or  the  loss  of 
a  considerable  sum  depend  upon  this  position,  alone  estab- 
lishes the  disproportion  between  the  cause  and  the  effect. 

II:  Complete  Chance  and  Incomplete  Chance.  When- 
ever a  mathematician  studies  any  game  whatever,  he 
considers  first  of  all  the  number  of  possible  solutions  that 
are  in  accordance  with  the  nature  of  things  or  with  the 
rules.  A  coin  is  tossed  into  the  air;  it  will  fall 
"heads  or  tails."  Physically,  it  might  roll  over  the  edge 
of  a  floor  and  get  buried  in  a  crack;  conventionally,  such 
a  case  would  be  waived  aside  as  not  to  be  counted.  And 
the  game  of  "heads  or  tails"  admits  of  only  two  possibil- 
ities of  equal  chances.  Upon  this  basis,  the  mathemati- 
cian will  imagine  a  series  of  more  and  more  complex  hy- 
potheses, by  considering  the  possible  results  of  every  com- 
bination. But  he  waives  aside  completely  all  the  factors 
of  realization  which  he  considers  as  incalculable  and  even 
as  indeterminate.  Given  the  rules  of  the  game,  he  studies 
the  probabilities  and  can  point  them  out  with  certainty. 
He  is  concerned  with  nothing  else.  A  pair  of  dice,  a 
game  of  cards,  and  a  roulette  are  to  him  abstractions; 
there  is  no  need  for  him  to  see  them  function,  and  he  is 
not  interested  in  the  movements  of  the  players  and  the 
partners,  which  are,  nevertheless,  the  true  causes  of  the 
results  which  he  seeks  to  foresee.  The  problems  of  the 
game  are  the  problems  of  complete  chance. 

Historical  chance  is,  on  the  contrary,  incomplete  chance. 
The  historian  is  acquainted  with  a  large  number  of  fac- 
tors of  realization.  He  is  able  to  evaluate  their  force  to  a 
greater  or  less  extent;  there  are  before  him  very  powerful 
causes  which  are  very  nicely  directed  toward  a  deter- 


624  CHANCE  [  CH.  Ill 

mined  aim.  He  sees  contradictory  forces,  but  he  cannot 
divine  which  will  be  the  victorious  force  of  the  future. 
The  historian  devotes  himself  very  earnestly  to  the  pres- 
ent —  to  any  present  whatever  —  in  order  to  try  to  under- 
stand from  it  the  solutions  of  the  future.  All  his  work  is 
accomplished  in  the  world  of  causes,  through  which  he 
would  like  to  foresee  everything  and  explain  everything. 
What  he  leaves  to  chance,  he  leaves  in  spite  of  himself. 
If  he  does  not  wish  to  labor  under  a  delusion,  he  is  obliged 
to  recognize  that  his  explanations  are  insufficient;  his  in- 
terpretation of  history  very  unsatisfactory.  He  makes 
allowance  for  chance  as  one  does  for  a  fire;  whatever  can- 
not be  taken  away  from  it  is  left  to  it,  and  this  is  a  great 
deal.  For  in  life  chance  acts  sometimes  with  an  unfore- 
seen brutality  which  changes  the  direction  of  human  lives 
by  a  violent  shock ;  sometimes,  by  a  series  of  small  shocks, 
continued  and  successive. 

The  study  of  causes  in  history  is  the  essential  task,  the 
fortuitous  element  being  only  complementary  to  it.  Nev- 
ertheless this  element  must  be  taken  into  account  else 
we  risk  falsifying  reality. 

Ill:  Frequency  and  Succession,  in  the  Laws  of 
Chance.  The  calculation  of  probabilities  permits  of  the 
ascertainment  of  the  chances  of  repetition  of  a  certain 
phenomenon  under  certain  conditions;  the  probable  num- 
ber of  heads  or  tails  in  a  certain  number  of  throws,  or 
the  probable  turn-up  of  a  particular  number  at  the 
roulette.  Such  a  calculation  also  computes  the  chances 
of  realization  of  isolated  series  that  are  considered  as  a 
whole,  for  example  how  many  times  the  series  "tail,  head, 
head,  tail,"  has  a  chance  of  being  realized  in  a  million 
throws.  But  it  cannot  take  into  account  the  whole  order 
in  which  all  the  phenomena  will  be  realized.  It  makes  a 
study  of  the  frequency  and  not  of  the  succession.  It  can 
indeed  give  curious  and  unexpected  information  upon  the 
frequency  only  because  it  neglects  the  order  and  the  sue- 


$2)  IDEA  OF  CHANCE  625 

cession  in  which  the  various  phenomena  present  them- 
selves. 

The  hypothesis  of  monkeys  setting  up  type  or  writing 
on  the  typewriter  is  one  of  the  neatest  illustrations  of  the 
theories  on  chance.  Suppose  there  are  a  certain  number 
of  monkeys  trained  to  set  type  or  to  write  on  the  type- 
writer. They  have  the  capacity  necessary  to  make  the 
imprint,  but  are  incapable  of  understanding  what  they 
are  doing.  They  act  purely  by  chance,  tapping  indiffer- 
ently upon  the  different  keys,  following  impulses  that  are 
unknown  to  us  and  may  be  considered  as  completely  un- 
determined. They  will  be  allowed  to  work  thus  for  a 
longer  or  shorter  time.  What  will  be  the  result  of  this 
work?  Among  them  all  will  they  have  written  a  single 
sensible  or  correct  phrase?  Hardly.  Will  they  have  set 
up  an  entire  book  corresponding  to  some  particular  de- 
termined work?  That  seems  quite  impossible.  Will  they 
have  reproduced  faithfully,  by  working  long  enough,  the 
text  of  all  the  books  of  this  or  that  library?  It  would 
seem  insane  to  suppose  this  possible  for  a  single  instant. 

And  yet  they  will  have  achieved  a  certain  result,  and 
the  result  which  they  will  have  achieved  had  no  more 
chances  of  becoming  realized  than  the  reproduction  of  all 
the  works  in  a  library.  Every  time  that  a  monkey  chose 
a  character,  each  of  the  characters  had  exactly  the  same 
chance  of  being  chosen.  The  work  finally  produced,  what- 
ever it  is,  had,  before  the  labor,  only  an  infinitesimal 
probability  of  existing  such  as  it  is.  The  slightness  of 
this  probability,  however  short  the  length  of  the  labor, 
defies  imagination.  Nothing  in  the  calculation  of  prob- 
abilities admits  of  the  foreknowledge  of  which  one  among 
the  infinite  combinations  possible  will  be  realized  in  pref- 
erence to  the  others. 

If,  on  the  other  hand,  one  is  not  concerned  with  the 
order  in  which  the  letters  were  chosen  and  is  contented 
with  finding  out  how  many  times  the  letter  a  occurs  in 


626  CHANCE  [  CH.  ill 

ten  million  letters,  the  calculation  of  probabilities  inter- 
venes. It  begins  by  fixing  very  precisely  the  chances  of  this 
letter's  reproduction,  say  ten  million  divided  by  fifty,  if 
we  suppose  there  are  fifty  characters.  It  is  not  probable 
that  this  number  will  be  realized  exactly ;  but  the  calcula- 
tion permits  of  the  establishment  of  the  limits  within 
which  the  reality  will  be  likely  to  differ  from  this  number. 
These  limits  are  rather  restricted.  The  probabilities  of 
wider  variance  from  a  certain  number  decrease  rapidly 
and  may  at  a  certain  instant  be  practically  neglected.  It 
might  likewise  be  computed  approximately  how  many 
times  the  group  "ab"  or  any  other  group  of  letters  has  a 
chance  of  being  repeated.  The  calculation  made  before- 
hand will  be  verified  not  once  but  regularly,  every  time 
the  monkeys  are  brought  together  and  made  to  work. 

Thus  in  history  may  one  foresee  up  to  a  certain  point 
the  frequency  of  realization  of  fortuitous  phenomena ;  it  is 
on  the  contrary  absolutely  impossible  to  foresee  the  order 
in  which  these  phenomena  will  succeed  one  another.  The 
chances  for  the  contingent  elements  in  history  to  occur  in 
reality  among  a  small  human  group  and  during  a  rather 
short  space  of  time  would  be  represented  by  a  fraction 
unbelievably  small.  What  would  be  the  fraction  which 
would  represent  the  chances  of  realization  of  the  whole  of 
history  such  as  it  might  possibly  have  been  established 
mathematically  at  any  period  whatever  since  the  origin 
of  humanity?  Here  no  fraction  however  infinitesimal  can 
be  neglected,  for  reality  would  of  necessity  have  been 
represented  in  the  past  by  a  fraction  that  was  also  very 
small.  Whether  a  hundred  or  a  trillion  tickets  are  put 
into  a  box,  the  one  which  is  drawn  out  will  be  quite  as 
surely  drawn  out,  although  before  the  drawing  the  value 
of  the  ticket  for  one  and  the  same  prize  was,  in  the  first 
hypothesis,  ten  million  times  greater  than  in  the  second. 

It  is  of  little  importance  to  the  gambler  to  know  the 
order  in  which  the  winning  and  the  losing  games  will 


§2]  IDEA  OF  CHANCE  627 

occur,  provided  he  gains  the  most  possible;  it  is  of  little 
importance  to  the  insurance  company  to  know  the  order 
in  which  the  persons  insured  will  die,  provided  too  many 
do  not  die  upon  any  one  date,  which  would  upset  his  cal- 
culations. 

Can  the  philosopher  of  history  be  equally  disinterested 
in  the  order  in  which  contingent  historical  phenomena 
will  be  produced  and  content  himself  with  averages?  Of 
course,  the  historian  may  attempt  to  submit  a  certain 
number  of  historical  phenomena  to  the  calculation  of 
probabilities,  and  this  will  be  very  useful  to  him;  but  in 
doing  it,  he  will  not  be  making  history. 

Gambling  and  insurance  have  as  their  basis  independ- 
ent events  which  are  complete  at  any  one  precise  in- 
stant. For  the  gambler,  it  is  the  game;  with  each  game, 
he  gains  or  loses.  For  the  insurance  company  it  is  a 
death,  a  fire,  a  storm,  or  the  like.  All  of  these  events 
are  independent  of  one  another.  At  the  beginning  of 
every  game,  the  gambler  gets  back  exactly  the  same 
chances  of  winning  and  the  same  chances  of  losing. 
Every  element  of  a  series  has  its  "raison  d'etre"  in  itself,  is 
not  influenced  by  that  which  precedes  nor  that  which 
follows  it. 

In  historical  chance  this  is  no  longer  the  case.  There 
are,  strictly  speaking,  no  distinct  games.  The  influence 
of  chance  is  continual,  and  the  determination  of  the  exact 
moment  when  the  blow  of  chance  makes  itself  felt  is  sim- 
ply an  arbitrary  one.  The  union  of  the  two  germs  which 
produced  Napoleon  I  was  a  fact  of  chance,  but  an  unin- 
terrupted succession  of  fortuitous  events  was  immedi- 
ately necessary  for  him  to  be  able  to  be  born,  grow  up 
and  accomplish  his  work  in  history.  On  the  other  hand, 
by  admitting  that  we  are  able  to  reduce  the  effect  of 
chance  to  a  series  of  games  lost  or  won  through  this  or 
that  historical  force,  these  games  would  not  be  independ- 
ent. The  loser  would  remain  under  the  effect  of  his  loss 


628  CHANCE  [  CH.  Ill 

and  would  not  begin  a  new  game  under  the  same  condi- 
tion as  the  first.  Successive  events  are  dependent  upon 
one  another. 

Accordingly,  the  order  in  which  the  gains  and  the 
losses  —  to  use  the  language  of  the  game  —  occur,  is  far 
from  being  a  matter  of  indifference;  because,  in  history, 
the  results  of  each  game  modify  the  conditions  of  the 
play,  transform  the  chances  of  the  different  solutions 
possible.  This  order  constitutes  a  factor  of  probability 
which  would  have  to  be  employed  in  every  calculation, 
if  it  were  to  be  a  question  of  computing  historical  chance. 

IV :  Chance  of  Crossing. '  We  have  seen  that  every  and 
any  law  of  realization  is  rendered  ineffective  by  the  pos- 
sible intervention  of  obstacles.  If  normally  a  .certain  par- 
ticular cause  should  produce  a  certain  particular  effect,  a 
foreign  phenomenon  may  interpose  between  the  two  and 
prevent  the  normal  result  from  being  produced.  What 
we  have  called  "obstacle"  others  have  called  "crossing," 
and  have  made  it  the  basis  of  historical  chance.  Such 
would  be  the  conception  of  Aristotle  and  Cournot:  Na- 
ture has  established  laws  which  ought  to  lead  to  precise 
and  determined  results.  Each  of  these  forces  bends  its 
course  directly  and  necessarily  toward  the  object  which 
is  assigned  to  it.  But  the  forces  are  numerous,  and  two 
or  more  of  them  may  conflict;  in  which  case,  the  objects 
of  nature  are  not  attained.  Here  is  accident,  chance. 
This  theory  has  been  illustrated  by  the  following  little 
parable:  A  stage  coach  runs  from  the  town  A  to  the 
town  B.  Another,  from  the  town  C  to  the  town  D.  The 
two  routes  are  both  straight  and  without  danger;  but 
they  form  a  cross,  cutting  one  another  at  the  point  P. 
The  two  coaches,  quite  unknown  to  one  another,  set  out 
at  the  same  hour,  at  the  same  speed  and  have  the  same 
distance  to  cover  before  they  meet  each  other  at  the 
crossing  at  which  will  occur  the  collision  and  overturning 
which  will  prevent  both  from  reaching  their  destination. 


§3]  CHANCE  AND  STATISTICS  629 

For  Aristotle  and  Cournot,  these  crossings  are  only 
rare;  they  are  violations  of  nature's  plan  which  render  it 
defective  but  do  not  destroy  its  general  outlines.  For 
other  philosophers,  these  crossing  points  are  innumerable 
and  constitute  the  fortuitous  element  in  history.  It  is 
more  correct  to  say  that  the  chance  of  crossing  is  a  par- 
ticular form  of  historical  chance;  though  perhaps  a  less 
frequent  form  than  many  others.  It  implies  the  exist- 
ence of  certain  necessary  laws,  which  can  be  obstructed 
only  by  other  necessary  laws.  It  does  away  with  the  so- 
called  indetermination  which  reflection  and  experience 
allow  us  to  perceive  in  a  large  number  of  phenomena. 
Accordingly,  it  would  be  wrong  to  try  to  trace  back  to  it 
the  whole  of  historical  chance. 

§  3.  Chance  and  Statistics.  Comparisons  have  often 
been  made  between  the  calculation  of  probabilities  and 
statistics.  These  two  sciences  deal  in  large  figures,  trace 
ascending  and  descending  curves,  and  works  in  both  sub- 
jects affect  a  certain  resemblance  in  form.  They  have 
also  a  common  object,  i.e.  to  establish  coefficients  of 
probabilities  which  permit  of  an  approximate  prevision 
of  certain  future  events.  Both  neglect  the  particular  and 
derive  averages.  But  the  calculation  of  probabilities  is  a 
deductive  science;  it  concerns  itself  with  an  entirely  un- 
determined mathematical  chance  and  refrains  from  all  in- 
vestigation into  the  causes  of  phenomena.  Statistics  is, 
on  the  contrary,  an  experimental  science;  it  endeavors  to 
group  together  the  greatest  possible  number  of  concrete 
observations.  It  needs  a  large  and  exact  documentation. 
It  does  not  consider  phenomena  as  undetermined;  quite 
to  the  contrary,  it  employs  the  data  furnished  by  experi- 
ence in  the  discovery  of  numerous  elements  of  determina- 
tion. The  fluctuations  in  various  phenomena  reveal  to  it 
at  times  certain  special  forces  lost  in  the  mass  of  causes 
and  effects. 
Let  us  suppose  that  the  death  of  men  of  a  certain  de- 


630  CHANCE  [  CH.  Ill 

termined  group  depends  solely  upon  a  game  of  chance, 
and  that  every  time  that  a  roulette  of  thirty-six  numbers 
turned  up  the  number  thirteen,  a  human  existence  would 
be  extinguished,  but  there  would  be  no  other  cause  of 
decease.  Knowing  the  number  of  games  to  be  played 
each  day,  the  mathematician  would  establish  his  prob- 
abilities of  death  daily  without  departing  from  the  do- 
main of  mathematical  chance,  and  he  could  do  this  with- 
out any  information  upon  the  mortality  of  the  past.  There 
are  in  the  existence  of  every  individual  chances  and  mis- 
chances of  the  same  nature  as  those  in  a  game  of  chance, 
by  which  life  is  prolonged  or  curtailed;  but  these  chances 
are  not  all.  The  ordinary  force  of  human  vitality  does 
not  permit  any  man  to  pass  beyond  a  certain  age  and  not 
many  to  attain  this  maximum.  Statistics  aids  one  in 
forming  a  more  or  less  vague  idea  of  this.  Many 
accessory  circumstances,  —  climate,  habitation,  food,  pro- 
fession, and  so  on,  have  an  influence  for  better  or  for 
worse  upon  the  duration  of  life.  The  great  use  of 
statistics  is  to  disengage  these  influences  and  substitute 
a  number  of  small  determined  factors  for  the  general 
indetermination. 

But  statistics  only  establish  probabilities.  No  more 
than  the  calculation  of  probabilities  does  it  replace  chance 
by  laws.  It  analyzes  the  general  indetermination  of  his- 
tory, but  does  not  suppress  it.  Certain  thinkers  have 
been  profoundly  impressed  by  the  revelations  of  statis- 
tics, and  the  unforeseen  character  of  its  conclusions  has 
led  them  into  a  misunderstanding  of  their  logical  nature. 
One  is  surprised  to  see  a  mind  like  Kant's  commit  such 
an  error.  No  more  than  the  laws  of  chance,  are  the  laws 
of  statistics  the  laws  of  realization.  They  determine 
nothing;  they  neither  possess  creative  force  nor  reveal 
any  mysterious  creative  force.  They  reveal  simply  a  cer- 
tain order  in  an  environment  which  the  human  mind  for 
a  long  time  considered  to  be  entirely  without  order. 


§4]  POSSIBILITIES  IN  HISTORY  631 

§  4.  Possibilities  in  History.  There  are  in  history  two 
intellectual  habits  one  of  which  is  as  much  to  be  deplored 
as  the  other.  It  is  absolutely  futile  to  ask  oneself  what 
the  world  would  have  become  if  some  particular  hypo- 
thetical event  had  been  realized,  or  if  some  particular  real 
event  had  not  been  realized.  What  would  have  happened 
if  Hannibal  had  destroyed  Rome?  If  Louis  XVI  had  been 
able  to  escape  abroad?  If  Napoleon  had  not  been  born? 
The  course  of  history  would  have  been  transformed  by 
either  of  these  hypotheses;  but  in  what  way? 

After  a  definitive  victory  of  Carthage,  the  play  of  his- 
tory would  have  offered  a  multitude  of  diverse  possibil- 
ities, among  which  chance  would  have  decided,  as  it  did 
decide  among  the  innumerable  possibilities  which  were 
opened  up  to  humanity  the  day  following  the  victory  of 
Rome.  This  incessant  intervention  of  chance  renders 
purely  fanciful  any  reconstitution  of  the  present  and  the 
future  upon  an  unrealized  hypothesis.  History  is  a  series 
of  very  rapid  games;  with  each  game,  the  partners  are 
changed;  the  rules  of  the  game  and  the  distribution  of 
chances  are  also  new;  but  the  combinations  possible  are 
always  numerous  and  only  a  single  one  of  them  will  be 
realized  and  will  dictate  the  rules  of  the  next  game. 

The  philosophy  of  chance  teaches  us  again  that  history 
is  not  a  succession  of  phenomena  bound  together  by  neces- 
sity, and  that  to  stitch  facts  and  facts  together  is  not 
sufficient  to  understand  it.  Each  moment  of  history  is  — 
in  addition  to  being  a  reality  —  a  totality  of  possibilities 
which  share  among  them  a  certain  number  of  chances. 
The  reality  of  today  is  only  one  of  the  possibilities  of  yes- 
terday, and  history  ought,  as  far  as  possible,  to  endeavor 
to  discover  in  its  immediate  past  not  only  its  cause,  but 
its  chances  in  the  midst  of  the  vanished  chances.  Above 
all  else,  it  ought  not,  as  it  has  so  often  been  made  to  do, 
to  attribute  to  itself  the  sum  total  of  the  chances  of  the 
day  before,  through  the  single  fact  that  it  triumphed  over 


632  CHANCE  [  CH.  Ill 

all  the  contrary  chances.  Before  it  became  consecrated 
as  real,  the  reality  of  today  was  only  a  possibility  in  the 
midst  of  many  others. 

Such  is  the  incident  of  the  ticket  of  the  canteen-woman 
who  won  the  million.  When  the  winning  number  was 
proclaimed,  the  crowd,  much  moved,  applauded  obstrep- 
erously. Why?  It  was  not  known  to  whom  the  ticket 
belonged.  But  the  crowd,  instinctively,  understood  for  a 
moment  the  meaning  of  history.  A  paper  which  was  but 
a  trifle  had  acquired  in  an  instant  a  very  great  share- 
value;  other  papers  which  were  worth  the  same  a  few 
seconds  before,  had  lost  all  value.  But  if  some  one  had 
tried  to  explain,  the  day  before  the  drawing,  why  the 
canteen-woman's  ticket  would  necessarily  have  to  be 
drawn,  the  common  sense  of  the  people  would  not  have 
listened.  In  the  world  of  historians  perhaps  the  explana- 
tion would  have  been  heard. 

§  5.  Chance  and  Legal  History.  From  the  fact  that 
chance  has  of  necessity  been  an  element  in  history  and 
accordingly  in  the  history  of  Law,  one  must  not  infer  that 
a  general  inde termination  is  to  be  found  there.  As  it  has 
been  said,  although  throwing  dice  is  a  game  of  pure 
chance,  there  is  no  chance  of  throwing  a  double  seven. 

The  factors  of  determination  are  very  numerous  and 
very  complex.  They  do  not  act  in  the  same  way.  Some 
are  divergent  forces  tending  to  impel  law  and  civilization 
into  unknown  regions;  others  are  convergent  forces  tend- 
ing to  bring  them  back  toward  a  precise  axis  and  to 
maintain  in  the  diversity  of  the  centuries  certain  like 
characteristics.  Finally,  others  still  are  mixed  and  can 
act  in  either  one  way  or  the  other.  Race,  or  more  gener- 
ally speaking,  the  physiological  .history  of  humanity,  is 
very  difficult  to  study  in  the  past  and  to  foresee  for  the 
future.  It  is  this  which  directs  humanity  in  the  most 
unexpected  directions.  "The  greatest  chance  is  the  birth 
of  a  great  man,"  Poincare  has  said.  It  is  not  solely  a 


§5]         CHANCE  AND  LEGAL  HISTORY          633 

question  of  great  men.  All  marriages  and  all  births  are 
facts  of  chance;  great  race  mixtures  are  due  to  circum- 
stances difficult  to  foresee.  It  is  these  which  give  to  hu- 
manity its  essential  intellectual  characteristics  and  can 
cause  its  divergence  in  the  most  unknown  directions. 

The  ensemble  of  material  factors  and,  among  them, 
human  inventions,  are  also  scarcely  to  be  foreseen.  They 
modify  all  the  conditions  of  existence,  the  foreign  eco- 
nomic relations,  and  the  home  politics  of  countries.  They 
engender  new  juridical  conceptions.  These  are  evidently 
forces  that  are  essentially  divergent.  The  creative  and 
mythical  spirit  found  in  a  great  number  of  human  beings, 
the  failure  to  understand  the  value  of  abstractions,  and 
the  pursuit  of  chimeras,  may  lead  peoples  to  the  right  or 
to  the  left,  at  the  chance  of  circumstances.  The  mind 
which  cherishes  myths  is  a  divergent  force  by  itself,  but 
especially  so  because  it  paralyzes  the  higher  intellectual 
forces  of  humanity. 

These  higher  intellectual  forces  operate  indeed  for  the 
purpose  of  leading  back  toward  an  immutable  axis  the 
civilizations  which  wander  away  from  it.  These  forces  are 
the  juridical  categories,  metaphysical  law  or  the  idea  of 
justice,  and  metaphysical  morality.  Juridical  categories 
form  the  abstract  logic  of  law.  No  positive  law  conforms 
to  them  entirely.  But  being  above  and  beyond  human 
psychology,  it  is  certain  that  so  long  as  humanity  pre- 
serves a  sufficient  degree  of  intellectual  power,  the  more 
or  less  complete  knowledge  of  categorical  truths  will  con- 
stitute an  element  of  juridical  thought.  The  metaphys- 
ical justice  formulated  in  the  rule  "suum  cuique"  will  no 
longer  ever  be  confused  with  positive  law.  Nevertheless, 
the  law  which  departs  from  it  has  a  tendency  to  be  led 
back  to  this  axis,  a  tendency  varying  with  the  intellectual 
state  of  a  people  and  the  constraint  of  material  forces 
under  which  this  people  labors  at  any  given  moment. 

Metaphysical   morality  or  the  idea   of  the   Good  is 


634  CHANCE  [  CH.  Ill 

equally  a  regulative  force.  It  has  scarcely  ever  been  the 
sole  rule  of  conduct  of  an  individual  or  a  society.  But  it 
constitutes  an  immutable  principle  which  tends  to  give 
to  societies  a  certain  unity  of  direction.  Collective 
thought  under  its  various  aspects  —  as  well  as  the  social 
morality  which  is  its  product  —  has  in  it  nothing  of  the 
immutable.  It  depends  essentially  upon  the  material 
form  of  human  groupings  and  varies  with  these  changes 
in  form.  But  since  these  forms  are  limited  and  these 
changes  made  not  without  difficulty,  this  special  factor  is 
quite  as  much  a  factor  of  conservation  as  of  variation 


The  philosophy  of  chance  seems  to  me  the  most-  natu- 
ral conclusion  of  a  philosophy  of  legal  history.  It  substi- 
tutes the  search  for  probability  for  the  search  for  cer- 
tainty. It  shows  the  complexity  of  causes  where  others 
wish  to  see  only  a  deceptive  simplicity.  It  permits  man 
to  utilize,  so  far  as  possible,  his  own  ignorance.  It  in- 
spires a  salutary  scepticism:  not  that  of  negation,  but 
that  of  prudence,  —  the  kindly,  scrupulous,  and  searching 
scepticism  which  might  well  be  the  best  instrument  of 
progress  for  humanity. 

BIBLIOGRAPHY 

PASCAL,  Trait6  du  triangle  arithmetique;  BERNOULLI,  Ars  con- 
jectandi;  LAPLACE,  Essai  sur  les  probabilites;  AMPERE,  Conside"- 
rations  sur  la  theorie  mathematique  du  jeu;  LACROIX,  Trait6  elemen- 
taire  du  calcul  des  probabilities;  BARBEYRAC,  Traite"  du  jeu,  vol. 
II  (1737);  PUFENDORF  (French  trans,  by  BARBEYRAC),  bk.  V,  ch.  9; 
LE  CLERC,  Reflexions  sur  ce  qu'on  appelle  Bonheur  et  Malheur  en 
matiere  de  Lotteries;  LA  PLACETTE,  Trait6  des  jeux  de  hasard. 

POISSON,  Recherches  sur  la  probabilite  des  jugements  en  matiere 
civile  et  en  matiere  criminelle;  QUETELET,  Lettre  sur  la  the'orie  des 
probabilites  appliquee  aux  sciences  morales  et  politiques;  COURNOT, 
Exposition  de  la  theorie  des  chances  et  des  probabilites;  JOSEPH 
BERTRAND,  Calcul  des  probabilites. 


§  5  ]          CHANCE  AND  LEGAL  HISTORY          635 

WRONSKI,  Loi  tel£ologique  du  hasard;  MALDIDIER,  Revue  de  philos. 
(June,  1897);  P.-Ta.  DE  REGNON,  Metaphysique  des  causes;  G. 
MILHAUD,  TARDE,  PIERON,  LECHALAS,  in  Revue  de  metaphysique  et  de 
morale  (1901,  1902,  1904,  1905);  POINCARE,  R.  DE  MONTESSUS,  F.  LE 
DANTEC,  in  Revue  du  Mois  (1907);  DARBON,  Le  Concept  du  hasard 
dans  la  Philosophic  de  Cournot  (1911);  LECHALAS,  Revue  neo- 
scolastique  (1903). 

C.  REVEL,  Le  hasard  (1909);  (a  work  with  a  mystical  tendency 
but  interesting  in  many  respects),  pp.  212,  230;  EMILE  BOREL,  Le 
hasard  (1914);  LE  DANTEC,  Le  chaos  et  I'harmonie  universelle; 
POINCARE,  Science  et  methode,  bk.  I,  ch.  4,  Le  hasard. 

KANT,  Idee  zu  einer  allgemeinen  Geschichte  in  weltburgerlicher 
Absicht;  ROYCE,  The  Mechanical,  Historical  and  Statistical,  in 
Science  (April  17,  1914). 


AUTHOR'S  APPENDIX  TO  THIS 
EDITION 


AUTHOR'S  APPENDIX  TO  THIS  EDITION 


In  the  field  of  pure  intellectualism  it  can  not  be  denied 
that  a  number  of  celebrities  of  the  nineteenth  century 
achieved  fame,  chiefly  through  qualities  of  form;  they 
were  splendid  rhetoricians.  Rhetoric  when  it  is  beautiful 
has  great  charm  and  conspicuous  inutility;  but  it  is  not 
lacking  in  danger.  Very  often  it  is  the  art  of  masking 
the  real  difficulties  of  thought.  It  carries  the  mind  across 
a  world  of  agreeable  pictures  cleverly  retouched,  which 
seem  easily  comprehensible  when  often  they  are  wholly 
wanting  in  meaning.  It  counsels  the  multitude  against 
all  mental  exertion  and  they  readily  submit.  It  is  certain 
that  the  law,  history,  and  philosophy  have  little  to  gain 
by  too  much  surrender  to  it.  In  legislation,  the  rhetori- 
cian is  the  great  favorite  alongside  of  routine  and  utopi- 
anism.  He  obstructs  desirable  legislative  studies  and 
rushes  into  superficial  reforms.  In  history,  he  is  more 
clever  in  deforming  the  past  to  flatter  the  wishes  of  the 
crowd  than  in  extracting  principles  of  solid  experience. 
In  philosophy,  he  delights  in  a  vague  optimism  and  easily 
arrives  at  an  explanation  of  the  universe  summed  up  in  a 
few  simple  and  harmonious  propositions. 

In  the  domain  of  the  mental  sciences,  the  role  of  rhet- 
oric has  for  a  number  of  decades  cut  down  the  profit  of 
more  positive  and  fruitful  methods.  It  is  assuredly  not 
the  moment  to  expect  a  springtide,  especially  if  one  be- 
lieves, as  I  believe,  that  the  fate  of  humanity  is  connected 
less  with  the  adoption  of  this  or  that  institution,  less 
with  the  expansion  of  moral  sentiments,  than  with  the 

039 


640  APPENDIX 

progress  of  the  mental  sciences.  Without  an  understand- 
ing of  the  philosophical  and  logical  bearings  of  law  and 
its  institutes,  without  a  tolerably  exact  comprehension  of 
the  mechanism  of  history,  it  is  to  be  feared  that  the  best 
will  can  not  avoid  falling  into  irreparable  errors.  Hap- 
pily, there  is  much  room  for  confidence. 

A  hopeful  portent  for  juristic  science  was  the  appear- 
ance in  1919  of  the  second  edition  of  Geny's  "La  methode 
d'Interpretation,"  the  first  edition  of  which  (1899)  was 
long  since  out  of  print.1  We  see  here  the  effort  of  a  great 
jurist  to  establish  the  true  nature  of  law  alongside  the 
texts  which  are  but  an  awkward  expression  of  it,  with- 
out, however,  falling  into  arbitrary  constructions.  But  of 
various  works  giving,  as  it  seems  to  me,  much  more  than 
a  simple  method  for  resolving  juridical  conflicts  in  detail, 
we  there  find  systematically  grouped  and  evaluated,  as 
well  with  scrupulousness  as  with  impartiality,  the  ideas 
of  all  those  who  wish  to  go  to  the  bottom  of  juridical  sci- 
ence. The  second  edition  of  the  "Methode,"  augmented 
and  set  in  proper  order,  constitutes  with  Geny's  "Science 
et  Technique"  an  encyclopedia  of  philosophy  of  law  of 
the  most  modern  kind. 

My  distinguished  colleague,  Biagio  Brugi,  formerly  of 
the  University  of  Padua  and  now  professor  at  the  Univer- 
sity of  Pisa,  has  published,  notwithstanding  the  war,  a 
remarkable  volume  entitled:  "Saggi  per  la  storia  de  la 
giuris  prudenza  italiana,"  an  historical  introduction  to 
the  law,  of  the  highest  scientific  importance.  Circum- 
stances prevented  earlier  acquaintance  with  this  work. 
This  was  a  serious  omission  which  must  be  repaired.  The 
always  profoundly  original  ideas  in  all  divisions  of  the 
law  of  this  Italian  jurist  have  long  been  familiar  to  me, 
and  it  will  be  understood  how  much  I  have  regretted  not 

'[Selections  from  this  work  were  incorporated  in  "Science  of  Legal  Method," 
Vol.  IX  of  this  Series,  pp.  1-46.) 


APPENDIX  641 

to  have  seen  earlier  his  new  work.  It  is  difficult  to  point 
out  here  how  great  the  profit  I  should  have  been  able  to 
derive  from  it.  Those  jurists  who  have  studied  the  Ro- 
manists of  the  Middle  Age  —  and  they  do  not  encumber 
the  terrestrial  globe  —  count  Biagio  Brugi  among  their 
masters  even  though  they  may  never  have  profited  by  his 
oral  teaching.  Such  is  my  case.  Likewise  am  I  able  to 
point  to  an  intellectual  parentage  which  brings  us  into 
close  association.  Neither  of  us  has  treated  the  old  jur- 
ists as  if  they  were  archeological  curiosities;  rather  we 
have  regarded  them  as  masters  whose  vigorous  logic  may 
well  instruct  the  most  modern  intellect.  I  have  been 
happy,  also,  that  Professor  Brugi  has  seen  fit  to  felicitate 
me  for  my  recognition  of  the  great  jurists  of  the  olden 
time.  This  recognition  which,  however,  is  far  from  doing 
justice  to  science,  I  owe  to  his  counsel  and  to  his  exam- 
ple. One  of  the  great  misfortunes  of  juristic  science  is 
the  ease  with  which  it  forgets  quickly  and  completely  its 
creative  personalities.  Philosophy  lives  and  changes 
equally  with  the  law,  but,  yet,  who  is  the  philosopher 
sufficiently  antiquated  that  he  is  forgotten?  And  who  is 
the  jurist  sufficiently  illustrious  that,  after  some  centu- 
ries, anything  of  importance  of  his  intellectual  genius  sur- 
vives? 

The  work  of  my  colleague  and  friend  Huvelin,  on 
"Furtum,"  had  already  been  published  more  than  lour 
years  when  I  had  an  opportunity  to  study  it.  The  book 
is  one  of  Roman  law  and  its  author  a  specialist  who  is 
absolute  master  of  his  science.  This  erudite  work  has  a 
limited  purpose  —  a  study  of  the  idea  of  "furtum,"  theft, 
in  the  ancient  Roman  literature.  Since  we  do  not  deal 
here  with  Roman  law  in  the  strict  sense,  the  concrete  re- 
sults obtained  by  the  author  do  not  interest  us  directly. 
Rather  it  is  the  author's  method  and  the  general  spirit  of 
his  work. 


642  APPENDIX 

Huvelin  has  collected  with  a  conscience  without  prece- 
dent all  the  Latin  texts  concerning  "furtum"  of  the  first 
epoch  of  Roman  history,  whether  literary,  epigraphic,  or 
juridical,  and  has  constructed  out  of  them  a  most  ingeni- 
ous commentary.  He  has  compared  his  materials  with  a 
very  special  care  for  their  chronology,  to  the  end  that 
the  slightest  variations  in  the  concept  under  investigation 
might  be  easily  understood.  It  may  appear  on  first  im- 
pression that  chronology  and  history  are  two  inseparable 
notions,  and  one  will  often  find  historians,  and  historians 
of  the  law,  largely  interested  in  the  details  of  chronology. 
It  is  nevertheless  true  that  sometimes  liberties  are  taken 
with  chronology  which  are  not  always  excusable.  Thus 
to  take  a  typical  case  it  has  long  been  seen  how  the  Ro- 
manists of  the  Historical  School  have  manipulated  the 
texts  of  the  pandects  as  if  the  jurisconsults  represented 
had  all  been  born  at  the  same  time.  This  is  a  caution  for 
all  historians  of  the  law  and  likewise  for  historians  in  gen- 
eral. If  they  understand  their  chronology  they  do  not  al- 
ways employ  their  knowledge,  nor,  on  the  other  hand, 
do  they  always  make  it  clear  that  it  should  be  consistent. 

By  this  rigorous  method,  the  author  sets  himself  the 
task  of  bringing  to  light  a  series  of  minor  concrete  data 
from  which  the  notion  of  theft  in  the  epoch  to  which  the 
author  limits  his  attention,  will  be  definitely  fixed.  But 
the  punishment  of  theft  is  only  another  way  of  speaking 
of  the  protection  of  property  and  of  possession.  The 
penal  idea  of  "furtum"  in  primitive  ages  defines  for  the 
epoch  the  civil  idea  of  property.  We  are  not  further  con- 
cerned with  any  of  the  problems  which  engage  only  the 
specialist,  but  juridical  psychology,  and  the  whole  history 
of  civilization  are  interested  in  the  solution.  In  this  re- 
gard, as  well  as  many  others,  the  solid  learning  of  the 
author  ought  to  lead  to  juristic  considerations  of  the  high- 
est order.  Furthermore,  the  still  mysterious  evolution  of 
juridical  technic  is  revealed  in  this  great  work.  One  may 


APPENDIX  643 

see  how  the  popular  law  and  the  confused  notions  of  an- 
cient Rome  became  condensed  in  precise  definitions  and 
in  a  learned  system.  While  the  author  has  not  formu- 
lated in  his  first  volume,  his  conclusions,  it  is  invaluable 
for  the  study  of  juridical  logic  and  its  development. 

The  tendency  of  theorists  in  the  law  to  enter  the  higher 
spheres  of  philosophic  thought  is  noticeable.  I  do  not 
purpose  in  this  brief  discussion  to  give  a  complete  idea  of 
it.  But  how  the  philosophers,  on  one  hand,  and  practi- 
cal lawyers,  on  the  other,  regard  the  situation,  where  co- 
operation is  necessary,  may  lead  to  the  refinement  and 
the  realization  of  the  whole  of  legal  theory.  It  is  clear 
that  the  attitudes  will  vary  according  to  individuals. 

I  take  the  liberty  of  noting  simply  by  title  of  identifi- 
cation the  very  kind  appreciation  of  this  work  by  my  col- 
league Millioud  in  Bibliotheque  Universelle.  Making  al- 
lowance for  what  is  due  to  his  friendship,  I  have  reason 
to  hope  that  he  does  not  regard  it  as  destitute  of  all  philo- 
sophic interest. 

With  reference  to  practical  lawyers,  the  encouragement 
I  have  received  from  them  demonstrates  that  they  are  far 
from  being  unfriendly  to  theoretical  works.  The  spirit  of 
the  Lausannean  juridical  world  turns  naturally  to  the 
most  abstract  problems  of  legal  science.  The  ancient  uni- 
versity traditions  and  the  presence  of  the  highest  Swiss 
magistracy  provide  a  favorable  setting  for  this  inclina- 
tion. Thus  may  be  explained  the  article  which  one  of 
the  chief  magistrates  of  the  Canton  of  Vaud,  cantonal 
judge  M.  Estoppey  has  been  good  enough  to  devote  to 
the  author  in  the  Schweizerische  Juristen-Zeitung.  He 
shows  with  a  generosity  quite  evident  how  the  most  in- 
telligent practitioners  take  an  interest  in  the  slightest 
theoretical  researches  in  new  fields  of  thought. 

The  theory  of  chance  and  its  function  in  history  doubt- 
less is  somewhat  outside  the  regular  scope  of  my  book. 


644  APPENDIX 

But  on  this  subject  I  have  been  happy  to  find  the  opin- 
ion of  a  friend  of  my  youth,  M.  Gaston  de  Marcilly,  who 
for  some  years  has  investigated  various  questions  in  higher 
mathematics  and  metaphysics.  In  pointing  out  to  me 
certain  omissions  and  in  indicating  some  difficulties  touch- 
ing the  solution  of  the  notion  of  chance,  he  admits  the 
justification  and  novelty  of  the  classification  of  chance  as 
objective  or  subjective  and  as  complete  or  partial,  which 
is  made  the  base  of  my  discussion. 

II 

The  work  of  Vaihinger,  "Die  Philosophic  des  Als  Cb: 
System  der  theoretischen,  praktischen,  und  religiosen 
Funktionen  der  Menscheit  auf  Grund  eines  idealistischen 
Positivismus,"  was  known  to  me  at  the  time  of  the  writ- 
ing of  the  French  version  of  my  book,  but  inadequately. 
On  this  point  I  may  be  reproached.  As  early  as  1911, 
Vaihinger's  thesis  had  been  presented  to  the  Philosophic 
Congress  at  Bologna.  Various  philosophic  journals  re- 
viewed it  in  1912.  In  1913,  the  work  appeared  in  a  sec- 
ond edition.  All  this  did  not  attract  my  attention,  which 
perhaps  is  excusable  in  a  historian  of  the  law  who  is  not 
a  philosopher  by  profession.  It  was  hardly  until  1916 
that  German  jurists  made  reference  to  this  work  for  the 
solution  of  certain  problems  of  juridical  logic.  At  this 
time  I  was  able  to  make  a  somewhat  superficial  survey  of 
the  first  edition.  It  was  not  until  the  year  1919  that  I 
had  come  to  the  conclusion  (after  the  1918  edition  of  my 
book)  that  I  ought  to  devote  some  time  to  the  theories  of 
Vaihinger  and  to  the  connected  literature  which  had  al- 
ready become  abundant.  I  avail  myself  of  the  opportu- 
nity to  present  here  in  a  summary  way  the  results  of  this 
investigation. 

Whatever  may  be  the  role  of  Vaihinger's  work  among 
professional  philosophers  it  has  for  me  a  special  interest 


APPENDIX  645 

in  the  fact  that  it  emphasizes  that  inferior  order  of  prac- 
tical logic  which  has  seemed  to  me  of  importance  in  legal 
reasoning.  A  large  part  of  what  I  had  called  "rational "  is 
denominated  "fictional "  by  Vaihinger.  I  have  had  reason 
to  ask  myself  if  my  efforts  to  penetrate  the  mechanism  of 
juridical  life  have  not  come  too  late,  or  if  they  have  not 
been  superseded  by  this  important  work. 

"Die  Philosophic  des  Als  Ob"  is  a  bulky  volume  of 
more  than  eight  hundred  pages.  From  beginning  to  end 
the  one  consistent  idea,  exploited  in  a  variety  of  forms,  is 
that  of  fiction.  The  effort  is  to  show  from  all  sides  what 
fiction  means,  that  it  may  be  discovered  in  all  sciences, 
and  that  it  has  in  them  a  place  of  considerable  impor- 
tance. When,  very  often,  the  author  places  reliance  on 
writings  which  support  too  exclusively  a  single  thesis,  he 
is  carried  away  by  the  desire  to  prove  too  much.  It  might 
be  unjust  to  cite  here  the  proverb:  "he  who  seeks  to 
prove  too  much,  proves  nothing";  but  it  is  certain  that 
the  argument  would  have  been  advantaged  by  less  ex- 
tensive claims. 

The  repetitions  are  numerous.  The  most  important 
ideas  —  at  least  at  the  moment  —  are  not  always  marshaled. 
It  appears  sometimes  that  ideas  which  should  stand  out 
in  advance  are  deferred.  The  work  therefore  is  poorly 
constructed,  which  is  excusable  when  it  is  considered  as 
the  labor  of  youth  published  long  after  it  had  been  com- 
posed. And  the  reader  who  should  fall  into  some  confu- 
sion as  to  the  significance  of  the  work  may  perhaps  also 
be  excused.  It  should,  moreover,  be  remarked  that  the 
style  is  clear  and  agreeable  and  that  the  hours  spent  in 
communion  with  this  large  volume  are  far  from  lack  of 
charm. 

"Wie  kommt  es  dass  Wir  mit  bewusst  falschen  Vor- 
stellungen  doch  Richtiges  erreichen?"  How  is  it  that 
with  concepts  known  to  be  erroneous  we  are  able  to  at- 


646  APPENDIX 

tain  correct  results?  This  is  the  problem  which  is  pre- 
sented. 

From  the  beginning  the  effort  is  made  to  show  that 
nearly  all  —  if  not  all  —  intellectual  activities  employ  the 
false  in  order  to  discover  the  true:  that  is  to  say  by  the 
use  of  fictions.  The  author  does  not  find  great  difficulty 
in  pointing  this  out  in  a  large  number  of  instances  in  the 
field  of  the  moral  sciences  —  metaphysics,  ethics,  esthetics, 
law,  —  as  well  as  in  the  exact  sciences  —  chemistry,  phys- 
ics, mathematics.  Thus,  in  general  logic,  all  classification 
—  excepting  genetic  classification,  —  schematization,  ab- 
straction, arbitrary  grouping  of  concrete  phenomena, 
etc.,  etc.,  lead  us  into  a  world  of  imaginary  beings  which 
we  well  know  do  not  exist.  Medieval  man,  primitive 
man,  the  man  healthy  in  mind  and  body  are  creations  of 
our  ideas.  The  basing  of  economic  laws  on  the  idea  of 
egoism,  the  inventing  of  a  social  contract  to  explain  the 
relations  of  the  individual  to  society,  the  attribution  to 
human  beings  of  an  inexplicable  freedom  and  the  capacity 
of  weighing  acts  for  the  purposes  of  responsibility,  etc., 
etc.  —  all  these  intellectual  operations  and  a  host  of  others 
of  a  similar  kind  are  pure  fictions.  Because  those  who 
perform  these  operations  take  into  account  or  ought  to 
take  into  account  what  they  affirm  of  facts  with  inexact- 
ness or  only  with  partial  accuracy,  has  the  effect  of  mak- 
ing the  truth  more  comprehensible  and  more  readily  ex- 
plainable. But  if  it  may  not  be  necessary  to  insist  on 
this,  it  is  quickly  apparent  that  the  mathematics  are  es- 
pecially rich  in  concepts  of  this  sort,  since  its  elements, 
the  most  simple  to  the  most  complex  —  point,  line,  surface, 
infinity,  space  of  n  dimensions,  V  1  and  that  the 
bases  of  all  reasoning,  the  categories  —  cause,  quantity, 
quality,  relation  —  have  no  actual  existence  whatever. 

This  multiplicity  of  fictional  notions  being  established, 
the  author  concerns  himself  to  determine  their  nature,  to 
point  out  their  mechanism,  and  to  justify  their  employ- 


APPENDIX  647 

ment.  Fiction  is  compared  with  hypothesis  which  it 
tends  to  resemble  in  certain  respects.  But  hypothesis 
makes  a  pretension  of  actuality.  It  is  a  truth  which 
awaits  confirmation,  or  it  is  an  error  which  precedes 
refutation.  Fiction  avows  its  discord  with  fact;  it  is  cer- 
tainly unreal  and  remains  such  always.  Yet  it  makes 
claim  of  a  usefulness  of  function. 

Moreover,  the  same  concepts  may  change  character. 
That  which  is  fiction  may  become  hypothesis,  and  that 
which  is  hypothesis  may  attain  the  dignity  of  dogma. 
Nothing  is  simpler  than  that  an  hypothesis  may  become 
a  dogma.  But  that  a  fiction  may  be  changed  into  an 
hypothesis  is  perhaps  somewhat  more  difficult  and  less 
often  occurs.  Yet  the  possibility  is  understandable.  This 
progression  from  negation  to  affirmation  is  one  of  the 
primary  forms  of  what  the  author  calls  "  Ideenverschie- 
bung  "  ("  transformation  of  ideas  ") .  The  universe  order  of 
movement  from  certitude  to  doubt,  and  from  doubt  to 
negation — dogma,  hypothesis,  fiction — is  a  form  of  trans- 
formation of  ideas  still  more  frequently  met.  Primitive 
and  naive  minds  believe  in  the  immediate  reality  of  their 
sensations  and  their  ideas;  they  know  only  dogmas.  More 
discriminating  minds  reduce  these  dogmas  to  the  level  of 
hypotheses;  and  the  severely  critical  intellect  changes 
these  hypotheses  into  fictions. 

In  order  to  explain  the  mechanism  of  fictional  judg- 
ment, the  author  makes  a  very  fine  analysis  of  the  ex- 
pression "  als  ob  "  ("  as  if  ") .  He  brings  fiction  to  the  anal- 
ogy of- comparison.  It  is  comparison  of  an  existing  thing 
with  another  thing  which  is  said  not  to  have  an  objective 
reality,  whilst  affirming  that  the  non-existent  thing  is  use- 
ful or  necessary  for  the  understanding  of  the  existent 
thing  —  a  subtle  process  which  demands  a  high  order  of 
intellectual  capacity.  For  Vaihinger,  that  which  justifies 
the  fiction,  as,  moreover,  any  other  logical  method,  is  its 
utility.  For  him  there  is  no  other  criterion  of  truth. 


648  APPENDIX 

Man  may  not  hope  by  the  process  of  a  theoretically  per- 
fect reasoning,  to  acquire  knowledge  of  the  concrete  ob- 
jects of  his  senses;  these  objects  being  for  him  inaccessible. 
He  ought  to  judge  all  things  by  practical  results  without 
concerning  himself  with  their  intrinsic  validity.  "So  ist 
die  Wahrheit  eben  auch  nur  der  zweckmassigste  Grad  des 
Irrtums  und  Irrtum  der  unzweckmassigste  Grad  der 
Vorstellung."  Fiction  prosperous  in  its  results  is  justi- 
fied in  its  basis;  it  is  subject  to  condemnation  if  it  is  not 
successful. 

Thus  Vaihinger  comes  to  a  special  theory  of  knowl- 
edge. Thought  being  of  a  nature  different  from  the  actu- 
ality is  not  able  to  apprehend  it  directly.  It  must  accom- 
plish its  ends  by  ingenious  combinations  of  ideas.  The 
dogmatism  which  believes  in  the  concordance  of  actual- 
ity and  thought  is  a  logical  optimism  which  is  the  life  of 
illusion.  It  bears  no  fruit.  The  scepticism  which  believes 
in  the  incapacity  of  human  reason  is  paralyzing.  It  is 
sterile.  The  critical  method  alone  is  productive  since  it 
attaches  no  importance  to  the  theoretical  value  of  thought 
and  believes  only  in  its  practical  worth.  The  author 
would  seem  to  have  the  ambitious  purpose  of  reducing  as 
far  as  possible  the  meaning  of  all  logical  forms  into  as 
many  other  forms,  to  the  end  that  they  may  attain  an- 
other value  based  on  the  service  which  they  are  fit  to 
render  to  humanity. 

The  function  of  logic  in  its  lower  sense  has  long  been 
neglected  in  the  changes  of  human  civilization-^  The 
processes  which  we  have  called  "rational "  and  which  oth- 
ers have  styled  "common  sense"  or  "practical  reason"  are 
the  woof  of  the  life  of  peoples  and  of  individuals.  Very 
rarely  the  superior  forms  of  thought  intervene  in  human 
action  but  even  when  they  are  reputed  to  play  a  part 
their  intervention  is  often  illusory.  But,  when,  on  occa- 
sion, mankind  proceeds  to  act  with  tolerable  results  with 


APPENDIX  649 

tools,  which  at  other  times  have  been  regarded  as  unfit, 
it  may  be  asked  whether  the  error  is  not  one  of  selection 
and  if  the  logic  of  the  practical  man  is  not  on  the  whole 
better  than  that  of  the  theorist.  As  to  that,  there  is  a 
tendency  to  exact  practical  reasoning  to  the  disadvantage 
of  theoretical  reasoning,  a  tendency  very  marked  at  the 
present  time  among  a  large  number  of  philosophers. 

Vaihinger  lays  the  basis  of  both  in  fiction  and  strips 
them  of  any  intrinsic  value  without  passing  judgment  on 
them  before  their  results  are  ascertained.  He  therefore 
creates  a  special  kind  of  pragmatism  which  conflicts  with 
the  American  pragmatism.  The  pragmatism  of  Vaihin- 
ger is  essentially  logical.  He  reduces  truth  to  utility.  It 
is  for  the  sake  of  utility  that  he  would  justify,  value,  and 
classify  the  various  aspects  of  mental  effort.  We  persist 
in  believing  that  there  are  noxious  truths  and  beneficent 
falsehoods,  but  that  the  pious  deceit,  though  excusable 
from  the  point  of  view  of  morals,  is  fit  for  condemnation 
in  the  light  of  science.  The  standard  of  logic  has  noth- 
ing in  common  with  the  standard  of  utility.  That  which 
is  practically  true  or  false  is  also  theoretically  true  or 
false,  and  in  reverse.  All  logical  form  should  be  evalu- 
ated by  its  concordance  with  truth. 

But  the  "truth"  is  not  the  "truth"  of  ancient  dogma- 
tism. It  is  a  truth  of  scepticism.  It  makes  allowance  for 
the  undeniable  fact  that  no  man  is  able  to  draw  anything 
from  his  own  mind  except  what  is  subject  to  all  sorts  of 
weakness  in  the  quality  of  man  and  in  the  character  of 
the  individual.  This  statement  does  not  discourage  the 
author.  He  makes  the  most  of  it.  Vaihinger,  moreover, 
has  taken  a  very  clear  position  against  ancient  scepticism 
and  modern  scepticism.  "The  Greek  held  so  closely  to, 
and  was  so  dependent  on,  direct  representation,  that 
when  these  direct  impressions  failed  him,  he  often  de- 
spaired of  thought  altogether.  Where  the  ancient  scep- 
tic observed  that  thought  goes  its  own  way  and  departs 


650  APPENDIX 

from  the  actuality,  he  at  once  concluded  that  we  must 
abandon  all  thought  as  worthless,  without  taking  account 
of  the  fact  that  this  thinking  does  yet  lead  to  practically 
correct  results."  This  last  statement  itself  is  open  to 
criticism.  For  how  are  we  to  know  that  the  efforts  of 
thought  are  practically  correct?  These  also  may  be  illu- 
sions. We  can  not  attain  more  certitude  of  practical 
truth  than  of  theoretical  truth.  We  must  content  our- 
selves with  the  results  of  our  thinking  because  we  have 
nothing  else  at  command.  Our  truth,  our  error,  our  ab- 
solute, our  relative,  our  abstract,  and  our  concrete  are  im- 
perfect and  uncertain.  But  they  are  none  the  less  our 
only  possible  guides  of  our  mental  activity. 

Consequently,  error  is  logically  reprehensible  even 
though  humanity  in  its  first  steps  upward  has  drawn  from 
it  the  primary  elements  of  civilization.  "Common  sense," 
"reason,"  "fiction"  are  of  the  highest  importance  in  life 
as  it  is,  but  of  secondary  value  in  logic. 

We  have  defined  "fiction"  as  "the  statement  of  an  er- 
roneous fact  with  the  knowledge  of  its  falsity."  The  defini- 
tion of  Vaihinger  is  not  much  of  a  departure:  "What 
we  take  as  fiction  is  every  representation  of  an  object  and 
every  supposition  concerning  it,  in  spite  of  the  fact  that 
we  are  conscious  that,  at  the  same  moment,  this  repre- 
sentation or  supposition  does  not  correspond  in  some  re- 
spect to  the  actual  truth  of  the  matter."  It  is  not  a  fic- 
tion if  the  fictional  idea  is  not  recognized  as  such.  Con- 
sequently, what  may  be  fiction  for  one  may  not  be  fiction 
for  another.  There  is  no  utility  in  inquiring  if  the  State, 
God,  Nature,  Liberty  are  fictions  or  not,  since  each  one  is 
free  to  choose,  according  to  his  beliefs,  whether  they  shall 
be  presented  as  such  or  not. 

He  who  does  not  inject  anything  of  actuality  in  an  ab- 
stract formula  which  is  presented  as  true,  does  not  deal 
with  fiction.  He  is  guilty  of  error,  whether  in  good  faith 


APPENDIX  651 

or  in  bad  faith.  This  species  of  error,  which  we  have 
called  "myth,"  proceeds  from  a  wholly  inferior  sort  of 
mental  activity. 

The  non-concordance  with  actuality  which  is  not 
willed  is  not  fiction.  Any  classification  of  it  can  only 
be  incongruous.  Consequently,  Vaihinger  does  not  ap- 
pear to  hold  himself  within  the  limits  which  he  himself 
has  fixed  by  his  own  definitions.  He  falls  back  to 
the  form  of  "als  ob"  (as  if),  one  of  the  inferior  methods 
of  thought. 

As  it  seems  to  me,  it  will  be  unfortunate  to  treat  as  fic- 
tions the  superior  and  scientific  forms  of  thought:  e.g., 
the  larger  part  of  the  concepts  of  mathematics  and  the 
categories  of  metaphysics.  No  doubt  we  must  admit  that 
they  are  neither  perfect  nor  definitive.  The  notions  of 
cause,  substance,  the  absolute,  quality,  quantity  may 
vary  and  have  varied.  We  conceive  these  things  but 
since  we  do  not  have  the  power  of  apprehending  the 
actual  abstract  and  concrete  except  in  a  partial  way,  we 
are  unable  to  affirm  anything  of  their  objective  nature. 
We  are  not  able  to  employ  them  other  than  to  regard 
them  as  eternal  truths  superior  to  mankind,  and  which 
would  exist  even  though  humanity  did  not  exist.  Through 
them  the  mind  may  exert  itself  with  maximum  effort  to 
penetrate  most  intimately  a  world  of  enigma.  Through 
them  it  may  reach  new  ground  whilst  the  true  fiction 
never  touches  anything  new.  We  may  dispense  with  the 
true  fiction,  but  with  categorical  truths,  never.  The  one 
is  infected  with  a  willed  and  calculated  inexactitude;  the 
others  are  imperfect  and  perhaps  inexact  because  it  does 
not  lie  in  the  power  of  man  to  make  them  more  perfect 
and  more  exact.  May  the  two  points  of  view  be  com- 
bined under  the  same  idea? 

Vaihinger  does  assimilate  them  but  without  complete- 
ness. He  distinguishes  from  the  start  two  species  of  fic- 
tion: 


652  APPENDIX 

1.  Those  which  contradict  the  truth  without  contain- 
ing in  themselves  any  element  of  contradiction.    Thus  it 
is  in  juridical  fictions  when,  for  example,  a  person  is  pre- 
sumed to  be  alive  though  already  dead.    The  author  calls 
these  semi-fictions. 

2.  Those  which  contain  in  themselves  the  elements  of 
contradiction:    e.g.,  the  atom,  thing-in-itself,  point,  line, 
etc.    The  greater  part  of  mathematical  and  metaphysical 
concepts  are  of  this  kind.    The  author  calls  them  "true 
fictions." 

Between  these  two  groups,  Vaihinger  sets  up  certain 
oppositions.  The  semi-fiction  simplifies  the  reality.  The 
false  statement  has  only  a  provisional  function  and  is  ad- 
mitted only  with  the  privilege  of  correction  before  the 
conclusion  is  arrived  at.  "Sie  fallt  im  Laufe  der  Rech- 
nung  auf."  It  drops  out  in  the  solution. 

The  "true  fiction"  complicates  the  reality.  The  false 
element  is  only  admitted  under  constraint  and  can  only 
be  eliminated  in  the  process  of  time  and  with  the  adop- 
tion of  a  similar  but  more  rigorous  method  of  reasoning. 
"Sie  fallt  einmal  im  Laufe  der  Zeit  weg."  It  drops  out 
in  the  process  of  time. 

The  opposition  may  be  pushed  too  far.  The  two  log- 
ical operations  will  then  appear  as  very  different  and 
when  arranged  in  a  hierarchy  of  human  thought  will 
seem  too  much  disconnected.  No  doubt,  since  all  is  un- 
certainty in  this  world,  it  is  permissible  to  speak  of  fic- 
tions. They  have  the  same  claim  to  exist  as  all  the  ob- 
jects which  surround  us,  as  all  our  pleasures  and  all  our 
pains,  and  as  all  the  ideas  which  cross  our  minds  in  life 
or  in  death.  But  this  assertion  which,  of  course,  is  not 
without  its  value  will  only  introduce  to  our  theory  of 
knowledge  utter  confusion  if  we  do  not  distinguish  sharply 
categorical  and  metaphysical  fictions  from  logical  fic- 
tions, and  the  fictions  of  wakefulness  from  the  fictions  of 
sleep.  Also,  the  reconcilement  which  Vaihinger  makes  of 


APPENDIX  653 

law  and  mathematics  seems  more  apparent  than  real. 
Because  the  law  is  preeminently  the  domain  of  logical 
fiction,  it  may  be  there  employed  without  inconvenience 
as  without  great  profit.  Mathematical  concepts,  empha- 
sized by  the  author,  belong  to  categorical  fictions  which 
are  entirely  constituted  of  contradictory  elements  and 
which  are  capable  of  considerably  increasing  human 
knowledge. 

The  work  of  Vaihinger  is  very  suggestive.  It  abounds 
in  ingenious  and  original  ideas.  It  does  not,  however,  re- 
quire of  us  a  recasting,  in  its  large  outlines,  of  our  general 
treatment  of  juridical  logic. 


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